May 13-19, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
ECHR: Case of Denmark v. Turkey
(Friendly Settlement), No. 34382/97 (April 5, 2000)
Mr. Kemal Koc, a Danish citizen, was arrested and detained
by police during a visit to Turkey, and was subjected
to interrogation techniques involving torture and other
forms of ill-treatment. Para. 14. Denmark requested
the European Court of Human Rights ("Court") to examine
Mr. Koc's treatment, as well as whether "the interrogation
techniques applied to [Mr. Koc] are applied in Turkey
as a widespread practice." Paras. 2, 20. Denmark referred
in its request to reports produced by, inter alia:
the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment; the
U.N. Committee on Torture; the U.N. Committee on Human
Rights; Amnesty International; and Human Rights Watch.
Para. 20.
On March 31, 2000 the Court received: 1) a joint declaration
by the parties; and 2) a separate declaration by the
Government of Turkey, the pair constituting a friendly
settlement. Para. 21.
In the joint declaration, Turkey agreed ex gratia
to pay Denmark450,000 Danish kroner, which included
related legal expenses. Id., Decl. Para. 1. Denmark
for its part appreciated "the acknowledgment and regret
expressed by [Turkey] concerning occasional and individual
cases of torture and ill-treatment in Turkey," and welcomed
the steps taken by Turkey to combat such treatment since
the filing of the application in 1997. Id., Decl.
Paras. 3-4. Denmark and Turkey agreed that the use of
inappropriate police interrogation techniques constitutes
a violation of Article 3 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms,
and that such techniques shall be prevented in the future.
Id., Decl. Para. 5.
The parties recognized that such an aim could best
be achieved through training, and Denmark noted with
satisfaction Turkey's voluntary participation in an
open-ended Council of Europe project to reorganize the
content of police training in member countries. Id.
Denmark pledged to finance a bilateral project with
Turkey that would, subject to agreement between the
parties, provide Turkish police officers with further
knowledge and practical skills in the field of human
rights. Id.
In its separate declaration, Turkey regretted "the
occurrence of occasional and individual cases of torture
and ill-treatment despite the resolute action of the
Government and existing legislation as well as administrative
regulations." Para. 21. Turkey affirmed that both the
Turkish Penal Code and the 1998 Regulation on Apprehension,
Custody and Interrogation had been amended to redefine
and prevent torture and ill-treatment in accordance
with international conventions, including: 1) the Convention
for the Protection of Torture and Inhuman or Degrading
Treatment or Punishment; and 2) the European Convention
for the Prevention of Torture. Id. Turkey noted
that its officials are authorized to implement the Regulation
through random controls and inspections, (id.),
and that domestic reporting requirements have been instituted
for such controls and inspections. Id.
Turkey further noted that the Law on the Prosecution
of Civil Servants and Other Officials, which facilitates
the investigation and prosecution of public officials,
was approved by the Turkish Parliament on December 2,
1999 and had entered into force. Id.. Turkey
declared that it would undertake further improvements
in the field of human rights, and would continue to
cooperate with international organs and mechanisms contained
in international human rights instruments to which Turkey
is a party. Id.
The Court for these reasons struck the case from the
list. Holding 1. BM
U.S. Fourth Circuit Court of Appeals:
Al Fayed v. United States, No. 99-1268 (April
26, 2000)
Seeking information relating to his son's death in
a Paris car crash, Mr. Al Fayed in February 1999 requested
a subpoena duces tecum from the U.S. District
Court for the District of Maryland to compel production
of relevant documents by the U.S. National Security
Agency ("NSA"). Mr. Al Fayed applied under 28 U.S.C.
Sect. 1782(a) ("Section 1782"), which authorizes U.S.
district courts, at the request of an "interested person,"
to order document production for use in foreign or international
tribunal proceedings.
The District Court accepted that Mr. Al Fayed met the
criteria of Section 1782 as an "interested person" in
French investigative proceedings, but denied the request
as an attempt "to make an end run around FOIA." The
District Court noted in its holding the NSA's earlier
finding that "disclosure [of certain such documents]
could reasonably be expected to cause exceptionally
grave damage to the national security." On appeal, the
U.S. Fourth Circuit Court of Appeals ("Fourth Circuit")
affirmed, finding that the District Court did not abuse
its "wide discretion" in responding to such a request.
The Fourth Circuit noted that Congress's "twin aims"
in enacting Section 1782 were: 1) to provide an efficient
means for federal courts to assist participants in international
litigation; and 2) to encourage foreign countries by
example to provide similar means of assistance to U.S.
courts. The Fourth Circuit noted that Mr. Al Fayed's
application did not make clear how the information sought
would assist Mr. Al Fayed's "participation" in the French
proceedings. The Court found also that a subpoena
for highly classified documents would not plausibly
set an encouraging example for foreign governments to
similarly assist U.S. courts.
The Court further noted that private parties typically
gain access to U.S. government documents through FOIA,
and that Section 1782 is typically utilized: 1) by foreign
judicial officials; 2) occasionally by prosecutors,
plaintiffs and defendants in foreign judicial proceedings;
and 3) "almost never . . . by persons in Al Fayed's
position."
The Fourth Circuit declined to rule on the U.S. Government's
argument that, on the basis of sovereign immunity and
statutory construction, the U.S. is not a "person" from
whom testimony can be required under Section 1782. The
Fourth Circuit noted, however, that in an unsuccessful
petition by Mr. Al Fayed to the U.S. District Court
for the District of Columbia that court had upheld the
government's argument. MB
U.N. Security Council: Resolution
1296 (On the Protection of Civilians in Armed Conflict)
(April 19, 2000)
The U.N. Security Council ("Council") expressed regret
that civilians account for the vast majority of armed
conflict casualties, and are increasingly targeted by
combatants and armed elements. Preamble.The
Council emphasized the need, when considering ways to
protect civilians in an armed conflict, to: 1) proceed
on a case-by-case basis; and 2) take into account the
particular circumstances of the situation. Para. 1.
The Council expressed its intention to collaborate
with relevant regional and subregional organizations
to further improve opportunities for the resolution
of armed conflicts and the protection of civilians therein.
Para. 7. The Council expressed its further intention
to call upon conflicting parties to make special arrangements
to protect and assist women, children, and other vulnerable
groups, including through "days of immunization" and
other opportunities to provide safe and unhindered delivery
of basic necessary services. Para. 10.
The Council also intends to ensure that, where appropriate
and feasible, peacekeeping missions shall be given suitable
mandates and adequate resources to protect civilians
under imminent threat of physical danger, including
by "strengthening the ability of the United Nations
to plan and rapidly deploy peacekeeping personnel, civilian
police, civil administrators, and humanitarian personnel,
utilizing the stand-by arrangements as appropriate."
Para. 13. The Council intends, on a case-by-case basis,
to include in the mandates of U.N. peacekeeping operations
clear terms for: 1) activities related to the disarmament,
demobilization and reintegration of ex-combatants, including
child soldiers; and 2) the safe and timely disposal
of surplus arms and ammunition. Para. 16.
When authorizing missions, the Council shall be willing,
where appropriate in authorizing missions, to consider
steps "in response to media broadcasts inciting genocide,
crimes against humanity and serious violations of international
humanitarian law." Para. 17. The Council affirmed that,
where appropriate, peacekeeping missions should "include
a mass-media component that can disseminate information
about international humanitarian law and human rights
law," as well as provide objective information regarding
U.N. activities. Para. 18. BM
International Law In Brief - Copyright 2000 - The American
Society of International Law Editor: Peter C. Hansen, Esq., Branislav
A. Maric Interns: Matthew Brinton
To comment on this publication, send an e.mail message
to Peter C. Hansen, Editor at phansen@asil.org
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