International Law in Brief

International Law In Brief

Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
March 4, 2003

JUDICIAL AND SIMILAR PROCEEDINGS

DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

BRIEFLY NOTED

JUDICIAL AND RELATED DOCUMENTS

European Court of Human Rights (ECHR): Case of Mamatkulov and Abdurasulovic v. Turkey, Application Nos. 46827/99 and 46951/99 (February 6, 2003)

The ECHR held that Turkey was in violation of Article 34 of the European Convention on Human Rights (?the Convention?), which provides that the High Contracting Parties of the ECHR shall not interfere with the right of the Court to receive applications from those claiming to be a victim of a violation of the Convention. The ECHR found that Turkey was not in violation of Article 3 (prohibition of torture) or Article 6 (right to a fair trial). The Court further held that the finding of a violation of Article 34 was in itself just satisfaction for the applicants? non-pecuniary damage, and additionally awarded the applicants with court costs.

The case involved Turkey?s extradition of two Uzbek nationals who were members of a political opposition party in Uzbekistan. Both applicants were detained by Turkish police as suspects for a fatal bombing in Uzbekistan and attempted assassination of Uzbekistan?s President. Uzbekistan invoked the bilateral extradition treaty between Uzbekistan and Turkey as a basis for the extradition.

The President of the Chamber of the ECHR indicated interim measures to Turkey pursuant to Rule 39, stating that it would be in the interest of the parties and in the interest of the administration of procedure that Turkey refrain from extraditing the applicants to Uzbekistan prior to a meeting of the competent chamber of the ECHR. The applicants were nonetheless extradited to Uzbekistan on March 27, 1999, contrary to the Court?s indication of interim measures. In July 1999, the High Court of Uzbekistan informed the ECHR that the applicants had been found guilty of the bombing and had been sentenced to prison for twenty and eleven years, respectively.

The applicants alleged violations of Articles 2, 3 and 6 of the Convention. Counsel for the applicants claimed that following the extradition, they were unable to communicate with the applicants, either by telephone or mail, and that investigations by international human rights organizations revealed Uzbekistan?s practice of torture and imprisonment of political dissidents. Counsel for the applicants further argued that while the applicants refuted the accusations against them in Turkey, they completely accepted them in Uzbekistan, indicating that their confessions were involuntary.

The ECHR disregarded the applicants? arguments under Article 2 concerning the right to life, and focused its analysis under Article 3, finding that the applicants had failed to allege particular acts of torture carried out by Uzbekistan officials towards the applicants. The court further found that Article 6 of the Convention, regarding the right to be heard before a fair and impartial tribunals, was inapplicable to Turkey?s decisions regarding entry, residence and expulsion of aliens. The Court found, however, that by not conforming to its obligations to abide by the interim measures issued by the ECHR, Turkey violated its obligation under Article 34 of the Convention.

Click here for the decision (in French).

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European Court of Human Rights (ECHR): Case of Refah Partisi (The Welfare Party) and Others v. Turkey, Applications Nos. 41340/98, 41342/98, 41343/98 and 41344/98 (February 13, 2003)

The ECHR unanimously held that Turkey was not in violation of Article 11 of the European Convention on Human Rights (?the Convention?) concerning the freedom of assembly and association.

In May 1997, the Principal State Counsel of Turkey applied to the Constitutional Court to have a political party, Refah Partisi (?Refah?), dissolved on the grounds that it constituted a center of activities contrary to the principles of secularism under the Turkish Constitution. After the elections of 1995, Refah was the largest political party in the Turkish parliament, with a total of 158 seats in the Grand National Assembly. The activities in question included speeches calling for the elimination of secularism and for its replacement with sharia. The speeches also alluded to the use of force for the achievement of Refah?s goals. The Constitutional Court of Turkey authorized the dissolution of Refah, observing that secularism was ?the instrument of the transition to democracy? and that ?[w]ithin a secular State religious feelings simply cannot be associated with politics, public affairs and legislative provisions.?

In 1998, Refah and three of Refah?s high-ranking members (?Applicants?) applied to the ECHR, claiming, inter alia, that the dissolution of Refah by the Turkish Constitutional Court and the suspension of some of the Applicants? rights to participate in politics resulted in a violation of Article 9 (freedom of thought), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) of the Convention. The Applicants argued that such acts were not carried out pursuant to a pressing social need, nor necessary to protect democracy in Turkey. The Applicants pointed to the fact that when Refah was in power from 1996-1997, it had not introduced draft legislation for a regime change based on Islamic law, nor had any member of Refah actually attempted to use force.

The ECHR observed that ?[t]he freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention, cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State?s institutions, of the right to protect those institutions.? In addition, the Court found that a State ?may decide to impose on its serving or future civil servants, who will be required to wield a portion of its sovereign power, the duty to refrain from taking part in the Islamic fundamentalist movement? and that ?compromise between the requirements of defending democratic society and individual rights is inherent in the Convention system.?

The ECHR found that the Applicants did not provide sufficient evidence to establish that the dissolution of Refah was carried out for reasons other than those cited by the Constitutional Court. It held that such reasons, namely the protection of secularism, the protection of national security and the protection of public safety were legitimate under Article 11(2) of the Convention.

Click here for the decision.

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International Criminal Tribunal for the Former Yugoslavia (ICTY) (Trial Chamber): Prosecutor v. Plavsic (Sentencing Judgment), IT-00-39&40/1-S (February 27, 2003)

The ICTY Trial Chamber sentenced Mrs. Biljana Plavsic, a member of the war-time Bosnian Serb leadership and a former post-war President of Republika Srpska, to eleven years' imprisonment.

Mrs. Plavsic surrendered voluntarily to the Tribunal in January 2001, and subsequently pleaded not guilty to all counts of the indictment. However, on September 30, 2002, Mrs. Plavsic entered into a Plea Agreement with the Office of the Prosecutor, pursuant to which she pleaded guilty to the third count of her indictment, namely persecutions, a crime against humanity (see October 11, 2002 ILIB for the summary of the Plea Agreement). Also pursuant to the Plea Agreement, the Prosecutor dismissed the remaining counts of the indictment against Mrs. Plavsic. In December 2002, the Trial Chamber held a sentencing hearing, at which the Prosecutor suggested that Mrs. Plavsic, a seventy-two year old, should be sentenced to not less than 15 years and not more than 25 years of imprisonment. At the same hearing, Mrs. Plavsic's defense team argued that, given Mrs. Plavsic's age and estimated life expectancy of 8.2 years, any sentence of more than eight years "would amount to life imprisonment and would be inappropriate."

The Trial Chamber noted that Mrs. Plavsic's guilty plea, voluntary surrender, post-conflict conduct and age represented "relevant, substantial, mitigating circumstances" in the process of determining her sentence. The Trial Chamber also noted that Mrs. Plavsic's guilty plea was accompanied by an expression of remorse and had "positive impact on the reconciliatory process" in the region, both of which should be considered as additional mitigating factors. The Trial Chamber stated that a number of witnesses who appeared at Mrs. Plavsic's sentencing hearing testified that Mrs. Plavsic played an important and positive role in supporting and defending the 1995 Dayton Agreement.

More specifically, the Trial Chamber noted the testimony of Mr. Robert Frowick, a former Head of Mission of the Organization for Security and Co-operation in Europe in Bosnia and Herzegovina, who testified that Mrs. Plavsic, while in her role of the President of Republika Srpska, was "singular, on the Bosnian Serb side, in supporting the Dayton Agreement." In addition to this, the Trial Chamber noted the testimony of Dr. Madeleine Albright, the former U.S. Permanent Representative to the United Nations and later the U.S. Secretary of State (1997-2000), who stated that Mrs. Plavsic made sure that the Dayton Agreement was carried out "'... at times when [this] was very difficult, [and] when there were those who wanted to destroy [it]'."

The Trial Chamber found that, in spite of these mitigating factors, an "undue leniency would be misplaced" in determining a sentence for Mrs. Plavsic. The Trial Chamber held that Mrs. Plavsic participated in a crime of the "utmost gravity," and that no sentence could "fully reflect the horror of what occurred or the terrible impact on thousands of victims."

Click here for the decision.

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International Criminal Tribunal for the Former Yugoslavia (ICTY) (Trial Chamber II): Prosecutor v. Simic, Case No. IT-95-9/2-S (October 17, 2002)

The Trial Chamber sentenced Milan Simic, a Bosnian Serb, to 5 years of imprisonment for two separate counts of beating and torture of Muslim and Croat civilians, constituting crimes against humanity under Article 5 of the Statute of the ICTY (?Statute?). The Trial Chamber ordered that the sentences be served concurrently, and further found that Simic was entitled to credit for already serving 835 days in relation to the sentence. Simic committed acts of torture in a primary school while serving as a member of the Serb Crisis Staff and president of the executive board of the municipal assembly in Bosanski Samac.

Simic is the seventh accused before the Tribunal to have been convicted on the basis of a guilty plea. Four years following the date of his initial appearance before the Tribunal, Simic entered into a Plea Agreement with the Prosecution, pleading guilty to two counts of the indictment charging him with crimes against humanity.

The Trial Chamber noted that Article 24 of the Statute and Rule 101(B) of the Rules of Procedure and Evidence of the Tribunal (?Rules?) set forth the aggravating and mitigating factors to be considered in determining the sentence for the accused. The Trial Chamber found that the victims? vulnerability, Simic?s discriminatory intent, his official position, and the circumstances under which the acts were committed constituted aggravating circumstances beyond all reasonable doubt.

The Trial Chamber found that Simic?s expression of remorse, his voluntary surrender to the Tribunal, his lack of prior record and good behavior in the detention unit constituted mitigating circumstances ?on the balance of the probabilities.? The Trial Chamber found that Simic?s paraplegia should be considered as a special circumstance in sentencing. In addition, the Trial Chamber observed that Simic?s voluntary surrender may have had a positive impact on relations between the Tribunal and the citizens and officials of Republika Srpska.

Click here for the decision.

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DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

Council of the European Union: Conclusions of the European Council Regarding Iraq (February 17, 2003)

The European Council reiterated its full support for the ongoing work of the U.N. arms inspectors in Iraq, stressing that the war was not inevitable and that inspectors "must be given the time and resources that the UN Security Council believes they need." The European Council, however, declared that the inspections "cannot continue indefinitely in the absence of full Iraqi cooperation," noting that this is the "last chance" for Iraq to disarm and that it must cooperate "immediately and fully." The European Council concluded that if Iraq fails to do so and "continues to flout the will of the international community," the Iraqi regime "alone" will bear responsibility for the consequences.

The European Council reaffirmed its commitment to the United Nations as the center of international order. The European Council noted that the international community demonstrated its "unity and firmness" in the course of adoption of the U.N. Security Council Resolution 1441 (see the November 11, 2003 ILIB for the summary of the Resolution). The European Council also stated that the military build-up has been ?essential" in obtaining the inspector's return to Iraq. The European Council concluded that these factors "will remain essential if we are to achieve the full cooperation we seek."

Click here for the Council?s conclusions.

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International Law In Brief (ILIB) - Copyright 2003 - The American Society of International Law (ASIL)
Editors: Ruth Teitelbaum, Branislav A. Maric, Scott Smith