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The Temptations of International Criminal Justice: Part One – Ukraine

ICCThe International Criminal Court (ICC) – to date the only permanent, multi-lateral institution created to prosecute cases of international crimes – has not had the easiest time of it. In fact, the Court has been plagued by many different accusations regarding its operations. One of the most persistent critiques it that the ICC has an anti-Africa bias.[1]

Since the entry into force of the Rome Statute – the Court’s founding document – on 1 July 2002, the ICC has opened 21 cases arising from 8 situations.[2] All of the accused are from African countries, only two of which not being from sub-Saharan Africa. Further supporting claims of an anti-Africa bias is the fact that the Office of the Prosecutor (OTP) has declined to open investigations into alleged crimes in Venezuela and Palestine – two of the few situations brought to the Court’s attention that are outside of Africa.[3] In the last weeks the Court has received, and the OTP opened preliminary examinations into, two additional referrals[4] – one referring to Iraq and the other to Ukraine.

UN Security CouncilThese two situations provide a tempting opportunity for the ICC to show that it is willing not only to take on cases outside of Africa, but also cases that involve potential allegations against government officials of the great powers – States with permanent seats on the United Nations Security Council (UNSC). Notwithstanding the need for the ICC to branch out and take on cases arising from events in locations other than Africa, and to challenge the great powers, the Court would do well to steer clear of both these situations. In the coming weeks I will write more about this subject. For now, this first post will discuss the situation in Ukraine.

The Situation in Ukraine

Recent events in Ukraine have been making international news for some time. The current round of troubles began with the street protests leading to the occupation of Maidan square by “pro-western” protestors in November of last year. The protests, at times violent, arose from the refusal of then president Yanukovych to sign an agreement with the European Union that would have led to greater ties between the regional block and Ukraine. He chose instead to pursue closer ties with Russia.[5] The protests escalated until February of this year with the overthrow of the Yanukovych government and his subsequent flight to Russia. The new regime in Kiev immediately began to have problems in the east of the country where there is a majority of ethnic Russians. These troubles have led to the annexation of Crimea by Russia and violent unrest in eastern Ukraine that has seen claims of criminal behavior by both sides.[6] While the new government in Kiev is supported by the West, Russia has supported – to an extent that is not entirely clear – separatists in the East.

Allegations have been made that the Yanukovych government illegally targeted civilians during the protests leading to his ouster in a way that amounts to the commission of international crimes. After the fall of his government, there have been allegations of crimes being committed against Russian speakers by those associated with the new regime that could in turn amount to international crimes.

This context is important in order to understand the scope of the referral by the new regime in Kiev, regardless of the veracity of either side’s claims of crimes by their opponents.

Ukraine’s Acceptance of Jurisdiction

The authorities in Kiev referred the situation in Ukraine from 21 November 2013 to 22 February 2014, covering only the period of the street protests in the capital that led to the overthrow of the Yanukovych government.[7] In effect, the authorities in Kiev have made a referral (technically an acceptance of jurisdiction pursuant to Article 12(3) of the Rome Statute) that would de facto only expose their political rivals to prosecution – a mighty tool in the continuing conflict ravaging that country. The OTP has since announced that it is conducting a preliminary evaluation of the situation.[8]

A One-Sided Referral

Kiev’s clever limitation of their referral would not be the first time that the ICC had to deal with a situation where the referring government wanted to encourage the Court to move against its opponents without risking prosecution of regime members. In the situation concerning the Lord’s Resistance Army (LRA), Uganda tried to refer only the crimes of the insurgent group and not those allegedly committed by government militias and armed forces. The OTP however decided that a referral of a situation to the ICC is ipso facto a referral of all crimes committed by either side of the conflict in question. In other words, States cannot just refer the crimes of their opponents. However, this was a case of the government trying to exclude liability arising out of contemporaneous acts to those that they were trying to refer to the Court. The situation in Uganda was an ongoing insurgency that saw attacks by the LRA and reprisals by government forces over a period of time.

The situation in Ukraine is different in at least one fundamental way. Here, the crimes allegedly committed by one side predominately occurred during the timeframe of the referral to the Court, while the crimes allegedly committed by the new government would have occurred after that time period. Kiev’s acceptance of jurisdiction poses the same dilemma as that of Uganda’s referral as to the one-sidedness of the prosecutions sought by the Court. Of course there are crucial differences, not the least of which is the fact that Uganda is a State party to the Rome Statute, so that there is no question of jurisdiction over crimes outside the scope of the referral in that case. Ukraine of course is not a State party so the ICC would lack jurisdiction outside of any acceptance thereof. In the face of this limitation the ICC should not simply mechanically proceed based on the scope of the referral by Ukraine as doing so would risk irreparable harm to the Court and the nascent permanent system of international criminal justice.[9]

Allowing the new authorities in Kiev to avoid responsibility through the use of a clever temporal limitation of their referral would undermine the message sent by the Court in the situation in Uganda – all sides are equal before the ICC and States cannot use the Court as a weapon against their political and military adversaries. It would send the wrong message about the purpose of international criminal justice if the Court (either the OTP or the chambers when they hear the issue) were to proceed with investigations and/or prosecutions based on such a limited referral or acceptance of jurisdiction. The message would be that if you are able to seize the government of a State, you could refer the crimes of your predecessors to the Court without risking prosecutions for the crimes you commit after taking power. State power as protection from prosecution, one of the central evils that international criminal justice was designed to remove.


Ukraine’s acceptance – or granting – of jurisdiction to the ICC is an attractive opportunity of the Court to show that it is not “anti-African” and to take on one of the great powers, Russia. However, while this may be true, the referral is also dangerous in that it could set a precedent on how to arrange the prosecution of political enemies before an international body thereby rendering the ICC nothing more than a pawn in the game of international Real Politick. The OTP and the Court as a whole must be careful not to allow this important institution to become anything other than an agent of justice by investigating and prosecuting crimes committed by all sides to a conflict, not just those that may have committed crimes first (or last). The failure of the ICC to successfully deal with this referral is nothing less than a mortal threat to the credibility of international criminal justice.

[1] See, e.g., http://iccforum.com/africa; http://www.gulf-times.com/opinion/189/details/367879/international-criminal-court-is-accused-of-anti-africa-bias; http://sites.thehagueuniversity.com/africans-and-hague-justice/home.

[2] Of the 30 accused before the court of committing international crimes, 8 remain at large (4 in one case alone from 2005), 3 have died before being taken into custody for trial, the charges against 4 were not confirmed, 3 have not been transferred for trial at the Court even though in custody of local authorities, the arrest of 2 was not confirmed, 1 has been acquitted, 7 are on trial or waiting for the confirmation of charges and 2 have been convicted. This is my count based on the current (17 May 2014) list on the ICC website. It may be that some names are no longer listed and my total count is therefore off. Also, I did not count those on trial for offenses against the administration of justice.

[3] See, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx.

[4] I am using the term her in a broader sense then the technical one used at the ICC. I mean simply that two new situations have been brought to the attention of the Court.

[5] In the background of this conflict are the divisions in Ukraine between ethnic Ukrainians and ethnic Russians.

[6] See, e.g., http://en.wikipedia.org/wiki/Euromaidan; http://online.wsj.com/news/articles/SB10001424052702303948104579533341029784038.

[7] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr997.aspx.

[8] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr999.aspx.

[9] The Court’s current problems have in no small part led to suggestions of creation another ad hoc court for South Sudan instead of referring the situation to the Court. See,


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The Netherlands v. Russia, Criminal Jurisdiction and The Case of the Artic Sunrise

On 22 November 2013 the International Tribunal for the Law of the Sea (ITLOS) issued provisional measures ordering the Russian Federation to release the Dutch vessel the Artic Sunrise and her crew from detention and allow them to leave the country. The dispute is about Russian jurisdiction to arrest the vessel (in a technical sense) and prosecute her crew for crimes they allegedly committed. The issue at the heart of the dispute is whether or not Russia violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by taking the vessel and her crew into custody while they were in the exclusive economic zone without first asking the Netherlands government for permission to board.

ITLOS ordered the provisional measures because it accepted that the failure to comply with such an order would irreparably harm the Netherlands’ interests pending resolution of the dispute between the two countries. The interests considered by the tribunal being the condition of the vessel and the crew’s liberty interests, both of which being harmed by their detention. As a guarantee pending the resolution of the international dispute (and to guarantee payment of any damages to Russia) the tribunal ordered that the Netherlands take out a bond of 3.6 million.

Russia, for its part, has stated that it will ignore the order for provisional measures, as it does not accept that jurisdiction of the tribunal. In fact, Russia did not participate in the hearing on the Dutch request for the tribunal to intervene.

What makes the issue so interesting is that it appears to conflate the issue of a potential infraction of an international obligation (such as the arrest of the vessel) that is capable of being resolved by the payment of money (economic loss) and the enforcement of national criminal laws (against the crew for their alleged crimes). These two issues are of a type different, one is inherently “civil” in nature while the other has to do with public order. A bond, such as that ordered by the tribunal, can work to guarantee compensation for Russia should the Netherlands lose the suit and be forced to pay – which is the purpose of seizing the boat in the first place. The same cannot be said for the release of the vessel’s crew.

The enforcement of criminal law is not about money (or at least it should not be). The idea behind penal sanction is that punishment will not only deter the culprit from violating the law a second time, but the existence of punishment will deter others from committing crimes in the first place. If the crew of the Artic Sunrise are guilty of crimes under the Russian penal code, their release will effectively prevent their punishment and thereby undermine the effectiveness of Russian criminal justice. Even assuming, however, that these considerations are not relevant, that would still not mean Russia would lack the legal ability to try the crew of the Artic Sunrise because the vessel was seized in violation of UNCLOS.

There is an internationally recognized principle that those who break the law may be tried even if their initial arrest was made in contravention of the law, known as the male captus, bene detentus rule. This rule has been explicitly accepted as a matter of International Criminal Law, and has been applied by States to justify national prosecutions. Some countries object to the validity of this rule of law and choose, as a matter of national law to prevent trial after illegal arrest. No rule of generally applicable customary international law requires such a result.

ITLOS did not address the issues of the enforcement of criminal law or male captus, bene detentus. The basis for its issuing the precautionary measures vis-à-vis the crew of the Artic Sunrise is not clear. It would have been great benefit had the tribunal decided to explain its decision, unfortunately, it did not.

In the end, Russia should comply with the order to release the Artic Sunrise and accept the bond on this matter. This is the correct legal result and it could be good as a political bargaining chip. When it comes to the custody of the crew, however, I cannot say that Russia is entirely in the wrong, at least as a matter of international law on the exercise of criminal jurisdiction.

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Review of International Tribunal Decisions for the weeks of October 15 & 23, 2012

This week’s review has decisions form the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). The range from the legality of the tribunals, protective measures to extradition.

International Criminal Law


Prosecutor v. Stanišić & Simoatović[1]

Decision on Serbia’s Requests for Provisional Protective Measures In Relation to Defence Documents


Serbia requested provisional protective measures for several documents in the possession of the defense.[2] Some of the documents were voluntarily provided by Serbia to the defense and some were Serbian documents independently acquitted by the Defense.[3] The Prosecution objected to the request for protective measures for the documents not provided by Serbia on the grounds that the State lacked standing to make the request.[4] The Chamber granted the request for provisional protective measures.


The Chamber noted that neither the rule nor the Appeals Chamber jurisprudence provided for, nor denied, the granting of protective measures for material not supplied by a State but otherwise originating from its official documents.[5] The Chamber then noted that the purpose for the relevant rule was to protect the national security interests of a State and thereby promote cooperation with the Tribunal.[6] However, such an order would apply on to use at the Tribunal and not to the source of material, which could do as it so pleases.[7] With these limits in mind, the Chamber granted the provisional protective measures.


Prosecutor v. Ayyash, Bareddine, Oneissi & Sabra[8]

Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”


The Defense challenged the legality of the Tribunal before the Trial Chamber and lost, this is the resulting appeal. The Appeals Chamber also rejected the Defense challenge.


The Appeals Chamber rejected the Defense challenge finding that the UN Security Council created the Tribunal and that such decisions were not reviewable by the Tribunal. This is because the decision was based on “a plethora of complex legal, political, and other considerations” for which no “meaningful standard of review” existed. Furthermore, the existence and means for dealing with a threat to international peace and security “lies in [the Security Council’s] discreation”.

International Human Rights Law


Makhmudzhan Ergashev v. Russia[9]

Chamber Judgment


The case concerned the Russian authorities’ decision to extradite a Kyrgyzstani national, who is an ethnic Uzbek, to Kyrgyzstan. The Court found a violation of the European Convention.


The Court held that, at present, there was a real risk Mr Ergashev would be ill-treated if extradited, in particular in view of the widespread use of torture against members of the Uzbek minority in the southern part of Kyrgyzstan. Given the current situation, it was doubtful that the local authorities could be expected to abide by the central government’s assurances that he would not be ill-treated.

It was the first time the Court examined on the merits the risk of treatment proscribed by Article 3 in Kyrgyzstan, where clashes between ethnic Kyrgyz and ethnic Uzbeks had erupted in 2010.

Smolorz v. Poland[10]

Chamber Judgment


The case concerned a journalist who published a highly critical article on the subject of communist-era architecture in the city of Katowice, Poland. He received a civil penalty for having damaged the good reputation of one of the architects named in the article. The Court found a violation of the applicant’s right to the freedom of expression


The Court held, in particular, that Mr Smolorz and his opponent were public figures who had been engaged in a public debate concerning an issue that could be described as “historical”. The Court found that the Polish courts had demonstrated rigidity and had given insufficient consideration to the context and nature of the disputed article. It also reiterated that the registers of sarcasm and irony were perfectly compatible with journalistic freedom of expression.

[1] IT-03-69-T, 19 October 2012.

[2] Ibid. at ¶¶ 1, 5.

[3] Ibid. at ¶¶ 2-4.

[4] Ibid. at ¶¶ 2, 4.

[5] Ibid. at ¶¶ 13-14.

[6] Ibid. at ¶ 15.

[7] Ibid. at ¶ 16.

[8] STL-11-01/PT/AC/AR90.1, 24 October 2012. These notes are taken from the Headnote of the decision, a more detailed discussion will follow at a later date.

[9] Application no. 49747/11, 16 October 2012. All text is taken from the press release.

[10] Application no.17446/07, 16 October 2012. All text is taken from the press release.

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Russia: RIP R2P?

Last week, former US Senator Chuck Hagel hosted current Russian Ambassador to the US Sergey Kislyak at a forum on US-Russia relations in Omaha, Nebraska, USA.  While the Russian Ambassador addressed several issues relevant to US-Russia relations at the forum, the most important issue that the capacity-audience raised, and that the Ambassador addressed, related to “the responsibility to protect.”

“The responsibility to protect,” or “R2P,” stands for the proposition that State sovereignty is not an absolute privilege; it is a qualified responsibility.  R2P requires, first and foremost, that each State has the responsibility to protect its civilian populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.  If a State is unable to protect its civilian population from these mass atrocity crimes, then R2P requires that the international community must (through the United Nations) peacefully assist the State in observing this responsibility by providing various “soft” measures, such as foreign aid and investment, economic incentives, and capacity building.  If that fails, or if a State is “manifestly” unwilling to avoid (or is actively committing) such mass atrocity crimes, then R2P requires that the international community must (through the United Nations) coercively protect the civilian population of that State from genocide, war crimes, ethnic cleansing, and crimes against humanity on its own.  These coercive measures may include everything from economic sanctions to military intervention.

When asked about Russia’s view on R2P – especially as it related to Syria – the Russian Ambassador appeared to completely reject the doctrine out of hand: “Countries must solve their own problems.  The factions within Syria must solve their own issues.  Both sides in Syria need to stop the violence.  If Bashar Al-Assad is to go, then it is up to the Syrian people to decide whether he should go, not outsiders.  This is a matter of principle.  The Russian Federation does not believe that anyone should impose their views on a sovereign State.”

However, when the Ambassador was asked about Russia’s actions in 2008 in Georgia, the Ambassador adopted, perhaps unconsciously, the language of R2P when he attempted to justify Russia’s intervention: “The Georgian government was attacking its own citizens and we [Russia] had an obligation to intervene for the safety of the [Georgian] people.”

Thus, while many naysayers may contend that Russia is a consistent opponent (perhaps persistent objector?) to R2P, the facts demonstrate that Russia’s position towards civilian protection, whatever the semantics, depends not upon its view of international law, but upon its aim in geopolitics.  As a result, it is too early for critics to say, “RIP R2P” when it comes to Russia, because, as it turns out, “R2P” may be the only legal justification for Russia’s geopolitical aims – with respect to Georgia or otherwise – in the future.

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Review of International Tribunal Decisions for the week of April 16, 2012

This week was the week of Karadžić at the International Criminal Tribunal for the Former Yugoslavia (ICTY) as all of our decisions from that court come from that case. They range from issues of confidentiality to the right of the Registry to respond to requests for administrative review. The International Criminal Tribunal for Rwanda (ICTR) is back this week with a decision on deferral. The Extraordinary Chambers in the Courts of Cambodia (ECCC) dealt with the disqualification of judges and the International Criminal Court (ICC) the appointment of counsel and the employment of interpreters. The European Court of Human Rights (ECtHR) issued numerous decisions ranging from the right to life in conflict situations to the right to life in events that happened before the European Convention came into effect.

International Criminal Law



Prosecutor v. Karadžić[1]

Decision on Motion for Access to Confidential Filing and Decisions in Enforcement Proceedings


The Accused requested access to confidential an inter partes filings in several cases that have already completed.[2] The Prosecution objected to the request arguing that the Accused failed to sufficiently identify the sought material and its purpose.[3] The President denied the motion.


The President noted that enforcement proceedings, unlike the substantive trial, only “address matters related to the enforcement of that convicted person’s sentence” there is no indicated, on its face without more, as to how that information would assist the Accused in his substantive case.[4] Without such a connection, it is inappropriate to grant the motion.[5]

Prosecutor v. Karadžić[6]

Decision on Accused’s Motion for Reconsideration of Chamber’s Decision on Motion to Exclude Intercepted Communications


The Trial Chamber issued a decision on 30 September 2010 denying the Accused’s motion to exclude wiretap evidence that was allegedly obtain in violation of his right to privacy in the 1990’s.[7] The Accused now moves for a reconsideration of this decision on the grounds that the evidence was obtained in violation of the Constitution of Bosnia and Herzegovina and would amount to rewarding the bad behavior of the authorities if the wiretaps could be used in the present proceedings.[8] The Chamber denied the motion.


The Chamber noted that motion “only reiterates the challenge [the Accused] has already raised regarding the alleged illegality of intercepts pursuant to Bosnian law” and that just because evidence was obtained in violation of State law does not mean that it should be excluded from an international criminal trial.[9]

Prosecutor v. Karadžić[10]

Order on Request for Review of Registrar Decision and for Summary Reversal

The Accused filed a request for review of a Registrar decision denying his request to employ two individuals as defense investigators wherein he requested that the Registrar not be allowed to make submission to the President on the matter.[11] The President denied the request to the extent that it was to prevent the Registrar from responding to the request for review and set deadlines for the Registrar to file any submissions and for the Accused to reply thereto.[12]

Prosecutor v. Uwinkindi[13]

“Appeal Chamber Dismisses Uwikindi’s Motion for Stay of Transfer to Rwanda”

The ICTR decided to refer Mr. Uwikindi’s case to Rwanda on 5 April 2012 making him the first person to have a case transferred from the Tribunal to Rwanda. He filed a motion to delay his transfer until his request for reconsideration of the transfer decision is decided.

The Appeals Chamber denied his request finding that it had “already concluded that the Referral Chamber acted within its discretion in distinguishing Mr. Uwinkindi’s case from other cases in Rwanda.” The Chamber also considered “the Defence had failed to show that either the allegations related to the trial of Ms. Ingabire contained in the motion or additional, more detailed submissions with regard thereto would demonstrate a clear error of reasoning in the Appeals Chamber’s decision of 16 December 2011 or require its reconsideration in the interests of justice.”



Case 002

Decsion on IENG Sary’s Appeal Against the Trial Chamber’s Decision on Motions for Disqualification of Judge Silvia Cartwright


The Accused filed a motion relating to meetings between Judge Cartwright and the Prosecution with the Trial Chamber in which the judge is serving.[14] The Trial Chamber decided to treat the motion as one for disqualification of a judge and denied the motion.[15] The Accused appealed and the Supreme Court Chamber rejected the appeal on the merits.


Even though the Trial Chamber treated the original motion as one under Rule 34 on disqualification, instead of one under Rule 35 dealing with interference with the administration of justice, the Supreme Court Chamber decided to treat the appeal as one from a decision on Rule 35 thereby rendering the appeal admissible.[16] The Supreme Court Chamber further held that Rule 35 setting out offenses against the administration of justice applies to the judges of the ECCC.[17] For actions to fall within the ambit of Rule 35 they must be intended to interfere with the administration of justice.[18] The Accused did not alleged that the actions were intended to interfere with the administration of justice, only that they could give an impression of bias.[19] The Chamber held that the meetings themselves do not ipso facto mean there was an attempt to interfere with the administration of justice.[20] Having said this, the Supreme Court Chamber noted that such meetings were not a very good idea and could give rise to the impression of bias.[21]



Prosecutor v. Gaddafi & Al-Senussi[22]

Decision Appointing Counsel from the OPCD as Counsel for Saif Al-Islam Gaddafi


On 3 March 2012, the Office of Public Counsel for the Defense (OPCD) met with Mr. Gaddafi in Libya, at which time he asked the OPCD to either select counsel or help him select counsel and signed a declaration to allow the OPCD to represent his interests until the appointment of counsel.[23]


The Chamber appointed the OPCD to represent the interests of Mr. Gaddafi based on the declaration he signed and the fact that current conditions make it difficult for the OPCD to communicate with Mr. Gaddafi in order to obtain his approval of any counsel that may be selected.[24] The Chamber therefore appointed the OPCD to represent Mr. Gaddafi pursuant to regulation 76(2) in the interests of justice.[25] The Chamber dismissed it for failure to satisfy the requirements of the Rules for disqualification.[26] The Accused argued that the appeal of this dismissal is admissible under rule 104 as an appeal from a rule 35 decision dealing with interference with the administration of justice.[27] The Accused also argued that the meetings between Judge Cartwright and the Prosecution have no legal basis and therefore were impermissible.[28] The Supreme Court Chamber held the appeal was inadmissible.

Prosecutor v. Nourain & Jamus[29]

Order on the Recruitment of Zaghawa Language Assistants by the Prosecution

The Accused objected to the Prosecution hiring of particular Zaghawa speakers as assistants because those same individuals had acted as interpreters during privileged telephone calls between the Accused and their counsel and so were privy to confidential information.[30] The Registry responded that the dearth of Zaghawa language assistants would threaten the Registry’s ability to provide interpretation at trial.[31] The Prosecution submitted that it would not hire the individuals in question.[32] Since the Prosecution decided not to hire the interpreters, the Chamber dismissed the motion as moot.[33]

International Human Rights Law



Estamirova v. Russia[34]

Chamber Judgment


The applicant, Sovman Estamirova, is a Russian national who was born in 1959. At the time of the events she lived in Argun; she currently lives in Noybera. Both towns are in the Chechen Republic. Her case concerned the killing of her husband, Asradiy Estamirov, born in 1957, on 5 January 2001 during an intense exchange of fire between a military convoy and unidentified people, while he happened to be standing at a street corner in Argun. The investigation into his death, still in progress, has so far failed to identify those responsible. The Court held that there was no violation of Article 2 right to life, however there were violations regarding the applications right to an adequate investigation and just satisfaction.


Ms Estemirova’s husband had been shot as a result of an exchange of fire between a military convoy and unidentified people. There had been no direct witnesses to the incident. Nor was there material evidence to prove whether the bullet which had caused her husband’s death had been fired from a weapon belonging to the military or to the unidentified group. The Court could not therefore conclude “beyond reasonable doubt” that Asradiy Estamirov had been shot by the Russian military. There had therefore been no violation of Article 2 as concerned the killing of Asradiy Estamirov.

The Court found, however, that there had been a violation of Article 2 concerning the authorities’ failure to conduct an effective investigation into the circumstances in which Asradiy Estamirov had died. Notably, numerous essential steps had not been taken such as questioning the head of the military convoy, the senior drivers and other servicemen. There had also been a delay of more than eight years in carrying out a ballistic expert examination to identify the firearms used during the incident. Moreover, the investigation had been suspended and resumed on a number of occasions with lengthy periods of inactivity and, although Ms Estemirova had been told of those procedural steps, she had not been informed of any significant developments.

Based on the ineffective criminal investigation, the Court found a violation of the right to an effective remedy.

Grudić v. Serbia[35]

Chamber Judgment


The case concerned complaints by two Serbians of Bosniak origin about prolonged non-payment of their disability pensions.


The retirement fund based its decisions to suspend the proceedings in which the applicants claimed the resumption of their pension payment on the basis of the Opinions of the Ministry for Social Affairs and the Ministry for Labour, Employment and Social Policy of March 2003 and June 2004 respectively, which apparently had never been published in the official gazette. At the same time, the Constitutional Court had held that such opinions did not amount to legislation but were merely meant to facilitate its implementation. Furthermore, the Supreme Court had specifically noted in its Opinion of 15 November 2005 that the recognised right to a pension could only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act. Consequently, the Court concluded that the authorities’ interference with Mr and Mrs Grudić’s possessions had not been in accordance with the relevant domestic law.

Janowiec and Others v. Russia[36]

Chamber Judgment


The applicants are 15 Polish nationals who are relatives of 12 victims of the Katyń massacre. The 12 victims were police and army officers, an army doctor and a primary school headmaster. Following the Red Army’s invasion of the Republic of Poland in September 1939, they were taken to Soviet camps or prisons and were then killed by the Soviet secret police without trial, along with more than 21,000 others, in April and May 1940. They were buried in mass graves in the Katyń forest near Smolensk, and also in the Pyatikhatki and Mednoye villages. The Court determined that it could not reach the merits of the case regarding the obligation to investigate the loss of life, but reached the merits and found violations of the prohibition against inhumane treatment.


Russia ratified the Convention 58 years after the killing of the applicants’ relatives. That period was not only many times longer than the periods which had triggered the State’s obligation to investigate in all earlier cases decided by the Court, but it was excessively long also in absolute terms. Therefore, it was not possible to establish a genuine connection between the deaths and the entry into force of the Convention in Russia.

The Court then examined whether the circumstances of the case could justify a connection between the deaths and the ratification on the basis of the need to ensure the effective protection of the Convention guarantees and values. It found that the mass murder of the Polish prisoners by the Soviet secret police had been a war crime, as the obligation to treat prisoners of war humanely and the prohibition to kill them had clearly been part of international customary law, which the Soviet authorities had had a duty to respect. However, even taking into account that war crimes were not subject to a statute of limitations, no evidence raising new or wider issues had been discovered after the ratification, hence Russia’s obligation to investigate could not be revived. There was therefore no connection on which to base responsibility under the Convention.

This was not true when it came to the treatment of the victims’ relatives. As regards the first group of 10 applicants, the Court found that they had suffered a double trauma: losing their relatives in the war and not being allowed to learn the truth about their death for more than 50 years because of the distortion of historical facts by the Soviet and Polish communist authorities. In the post-ratification period, they had not been given access to the investigation’s materials, nor had they otherwise been involved in the proceedings or officially informed of the outcome of the investigation. What was more, they had been explicitly prohibited from seeing the 2004 decision to discontinue the investigation on account of their foreign nationality. The Court was struck by the apparent reluctance of the Russian authorities to recognise the reality of the Katyń massacre. The approach chosen by the Russian military courts to maintain, to the applicants’ face and contrary to the established historic facts, that their relatives had somehow vanished in the Soviet camps, demonstrated a callous disregard for the applicants’ concerns and deliberate obfuscation of the circumstances of the Katyń massacre. The Russian prosecutors also rejected any attempts to “rehabilitate” those who were executed by clearing their records. The State also had a duty to locate the victims, which it did not do. There was therefore a violation of the duty to humanly treat the family of the victims.

[1] IT-95-5/18-T, 17 April 2012.

[2] Ibid. at p. 1.

[3] Ibid.

[4] Ibid. at p. 2.

[5] Ibid. at p. 3.

[6] IT-95-5/18-T, 18 April 2012.

[7] Ibid. at ¶ 1.

[8] Ibid. at ¶ 2.

[9] Ibid. at ¶¶ 5-6.

[10] IT-95-5/18-T, 20 April 2012.

[11] Ibid. at p. 2.

[12] Ibid.

[13] Unfortunately the decision is not available on the website of the ICTR. All information in this summary is taken from the press release.

[14] Ibid. at ¶ 1.

[15] Ibid. at ¶ 3.

[16] Ibid. at ¶¶ 11-17.

[17] Ibid. at ¶¶ 18-19.

[18] Ibid. at ¶¶ 20-21.

[19] Ibid. at ¶ 22.

[20] Ibid. at ¶ 23.

[21] Ibid. at ¶ 24.

[22] ICC-01/11-01/11, 17 April 2012.

[23] Ibid. at ¶ 3.

[24] Ibid. at ¶ 5.

[25] Ibid. at ¶ 6.

[26] Ibid.

[27] Ibid. at ¶ 4.

[28] Ibid. at ¶ 6.

[29] ICC-02/05-03/09, 18 April 2012.

[30] Ibid. at ¶ 1.

[31] Ibid. at ¶ 3.

[32] Ibid. at ¶ 4.

[33] Ibid. at ¶ 5.

[34] Application No. 27365/07, 17 April 2012. All facts and information are taken from the press release.

[35] Application No. 31925/08, 17 April 2012. All facts and information are taken from the press release.

[36] Application Nos. 55508/07 and 29520/09, 16 April 2012. All facts and information are taken from the press release.

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