First Case Against Georgia in the European Court

On 8 April 2004 the European Court of Human Rights delivered its first judgment against Georgia in the case of Assanidze, in which the Court found that Georgia has violated Mr Assanidze�s right to liberty and security, and right to a fair trial. INTERIGHTS was engaged as advisors to counsel in respect of the preparations for the hearing before the Grand Chamber of the Strasbourg Court held in November 2003.

The applicant � Tengiz Assanidze � was the mayor of the town of Batumi, capital of the Ajarian Autonomous Republic, Georgia, and a member of the Ajarian Parliament. He was arrested in 1993 on a charge of illegal financial dealings and in 1994 he was sentenced to eight years� imprisonment. The applicant was pardoned by the President of the Republic, Shevarnadze, on 1 October 1999, but was not released by the local Ajarian authorities. In December 1999 the applicant, who was still in custody despite the presidential pardon, was charged in a new case. On 2 October 2000 he was sentenced to twelve years' imprisonment by the Supreme Court of the Ajarian Autonomous Republic. Although his conviction was quashed in January 2001 by the Georgian Supreme Court, the applicant was only released by the Ajarian authorities on 9 April 2004, after the judgment of the Strasbourg Court ordered his release.

The European Court accepted in its judgment that despite the difficulties encountered by the central Georgian authorities to secure compliance with the Convention rights by the local Ajarian authorities, the facts of the case fell within the �jurisdiction� of Georgia and  it was solely the responsibility of Georgia that was engaged under the Convention.

In a concurring opinion, Judge Loucaides emphasised that the Convention obligations apply to states �whenever they act in exercise of their state authority with resulting consequences to individuals�, and that such authority may �take the form of any kind of military or state action on the part of the High Party concerned in any part of the world�� (This opinion, which suggests a more expansive approach to the Convention�s application than was taken by the Court in its controversial Bankovic judgement, may prove significant in future cases.)

The Court further held that the applicant has been arbitrarily detained after January 2001, in breach of Article 5(1) of the Convention. The Court also found that Georgia has violated Mr Assanidze�s right to fair trial (Article 6(1)) in that it failed to secure execution of the judgement acquitting the applicant.

By way of just satisfaction for Mr Assanidze, the Court obliged Georgia to secure his release, and to pay him a compensation of 150,000 euros. Stipulating the specific measures that the state must take to remedy the violation is an important step forward in developing the Court's standards in the area of just satisfaction. So far only in cases of deprivation of property has the Court directed the respondent states as to the means of rectifying a violation of the Convention, and has done that not in a mandatory fashion, in contrast to the judgment in the Assanidze case. Moreover, it is also significant that the Court made clear that in cases such as the present involving arbitrary detention, the only appropriate remedy is the release of the detained person: �[B]y its very nature, the violation found in the instant case does not leave any real choice as to the measures required to remedy it� (para 202, end).

Acess the full text decision of the Court's judgment on its website here.

Evidence of Force Unnecessary to Prove Rape in Important Win Against Bulgaria

On 4 December 2003, the European Court of Human Rights found Bulgaria to have violated the European Convention for Human Rights in the case of MC v Bulgaria in which INTERIGHTS had made a third party intervention in support of the applicant�s position. The case concerns the criminal investigation of the rape of the 14-year-old MC. The investigation found insufficient evidence that MC had been compelled to have sex with the two alleged perpetrators, and subsequently the proceedings were terminated as the use of force or threats had not been established beyond reasonable doubt. In particular, no resistance on the applicant�s part or attempts to seek help from others had been established.

MC complained before the European Court of Human Rights that Bulgarian law and practice do not provide effective protection against rape and sexual abuse, as only cases where the victim resists actively are prosecuted. She submitted that Bulgaria has a positive obligation under the European Convention on Human Rights to protect the individual�s physical integrity and private life and to provide an effective remedy. She also complained that the authorities had not effectively investigated the events in question.

The Court found a violation of Article 3 (prohibition of degrading treatment) and Article 8 (right to respect for private life). The Court held that under Articles 3 and 8 of the Convention, Member States had a positive obligation both to enact criminal legislation to effectively punish rape and to apply this legislation through effective investigation and prosecution. In particular, the positive obligation requires the penalisation and effective prosecution of any non-consensual sexual act, even where the victim had not resisted physically.

In its judgment, the Court observed that, historically, proof of the use of physical force by the perpetrator and physical resistance on the part of the victim was sometimes required under domestic law and practice in rape cases in a number of countries. However, it appeared that this was no longer required in European countries. Based on the amicus curiae submissions by INTERIGHTS, the Court observed that in common-law jurisdictions, in Europe and elsewhere, any reference to physical force had been removed from legislation and/or case law. Although in the case law and theory of most European countries influenced by the continental legal tradition, the definition of rape contained references to the use of violence or threats of violence by the perpetrator, it was lack of consent, not force, that was critical in defining rape.

The Court also noted that the Member States of the Council of Europe had agreed that penalising non-consensual sexual acts, whether or not the victim had resisted, was necessary for the effective protection of women against violence and had urged the implementation of further reforms in this area. In addition, the International Criminal Tribunal for the former Yugoslavia had recently found that, in international criminal law, any sexual penetration without the victim�s consent constituted rape, reflecting a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse. As INTERIGHTS had submitted, victims of sexual abuse � in particular, girls below the age of majority � often failed to resist for a variety of psychological reasons or through fear of further violence from the perpetrator. In general, law and legal practice concerning rape are developing to reflect changing social attitudes requiring respect for the individual�s sexual autonomy and for equality. Given contemporary standards and trends, Member States� positive obligation under Articles 3 and 8 of the Convention requires the penalisation and effective prosecution of any non-consensual sexual act, even where the victim had not resisted physically.

The Court considered that the Bulgarian authorities should have explored all the facts and should have decided on the basis of an assessment of all the surrounding circumstances. The investigation and its conclusions should also have been centred on the issue of non-consent. The Court found that the effectiveness of the investigation of the applicant�s case and, in particular, the approach taken by the investigator and the prosecutors fell short of Bulgaria�s positive obligations under Articles 3 and 8 of the Convention � viewed in the light of the relevant modern standards in comparative and international law � to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse.

Read the full text of the Court�s judgment here, its press release and INTERIGHTS' 'friend of the court' submission here.

Significant Judgment against Russia on Wrongful Mental Health Detention

In its judgment issued on 28 October 2003 in the case of Rakevich v Russian Federation, the European Court of Human Rights declared that the Russian Federation had violated the rights of a Ms Rakevich, whom it had alleged to be mentally disabled. Ms Tamara Rakevich claimed that she was arbitrarily and unlawfully detained in a psychiatric hospital and that there was a lack of a timely and adequate judicial review of her case. The Court ruled that Ms Rakevich had been detained in violation of the procedure prescribed by Russian law, in that the judicial decision approving her confinement was delivered 39 days after she was detained, instead of the required five-day period. The Court found a violation of Article 5 (1) of the European Convention for Human Rights in this respect. The Court also held that the lack of a right to independently challenge the lawfulness of the psychiatric detention violates Article 5 (4) of the European Convention.

This judgment is expected to lead to changes in the Russian law on psychiatric treatment, introducing the right for people that have been detained for psychiatric treatment to test the lawfulness of their detention. It will also hopefully trigger a change in the practice of delayed judicial reviews in such cases.

However, Ms Rakevich did not succeed in convincing the Court that there was no emergency to detain her, and that she had not been shown to be of unsound mind by objective medical evidence existing at the time of the detention. The Court held that although Ms Rakevich had no history of mental disorder, and that her state on the verge of her detention alone could not justify her detention in a psychiatric facility, the psychiatric reports issued after she was detained confirmed that her mental condition presented an �emergency�. Further, the Court held that Ms Rakevich�s detention was not arbitrary as the authorities� decision was based on psychiatric evidence that she was mentally ill.

The Court�s conclusion is debatable in light of the facts of the case. Ms Rakevich was detained by the emergency ambulance team and was brought to the psychiatric hospital because she had not slept the night before, and instead had been reading the Bible and weeping. It was on the basis of these inconsequential facts that Ms Rakevich was deprived of her liberty. The subsequent actions of the authorities, including the medical reports issued, were aimed at justifying the initial detention.  The Court�s conclusion on this point allows for too broad a discretion on behalf of the national authorities when assessing what constitutes psychiatric �emergency� and �a person of unsound mind�. The Court�s judgment in this respect is disappointing, especially in the context of the Russian psychiatric practices which still contain remnants from the Soviet past when psychiatry was used as a political tool and detention was the rule rather than the exception.

Further, the Court decided not to examine several additional important aspects of the complaint under Article 5(4). Ms Rakevich had argued that the proceedings in her case were not speedy and lacked essential elements of a fair and transparent procedure, namely that the applicant and her representatives were denied access to the medical � and possibly other � documentation that served as a basis of her involuntary hospitalisation, that crucial witnesses were not heard and that the review of the courts was superficial to the extreme.

The Facts

On 26 September 1999, Ms Rakevich was involuntarily hospitalised in Yekaterinburg City Psychiatric Hospital in Russia. She had been brought to the hospital by an emergency ambulance team responding to a call from Ms Rakevich�s acquaintance, who claimed that Ms Rakevich, �had remained awake throughout the night studying the Bible and weeping�. Ms Rakevich was diagnosed as having a grave mental disorder that manifested itself in her being a danger to herself. She had no history of mental illness. Two days later she was diagnosed by the medical commission of the hospital as suffering from paranoid schizophrenia and was said to be in need of compulsory treatment at the hospital.

After 39 days of confinement, the District Court confirmed that the detention had been necessary as the applicant had suffered from an acute attack of paranoid schizophrenia. In its findings, the Court relied exclusively on assertions by the hospital that the applicant�s aggravated mental condition had put her physical integrity in danger. Despite requests, the applicant�s representative did not have any access to the report of the medical commission either before or after the hearing. On 24 December 1999, the Sverdlovsk Regional Court dismissed Ms Rakevich's appeal against the decision of the District Court, confirming the lawfulness of her detention. It also established, however, that the applicant�s compulsory care was no longer necessary as the applicant �had a job, was a single mother of a schoolboy, and had already spent a considerable period of time in the hospital�. Ms Rakevich was released.

 Read the full text of the European Court�s judgment here.

European Court Declares Shamayev & 12 Others v Georgia & Russia Admissible:
Russia Refuses Fact-Finding Mission

INTERIGHTS acted as adviser to counsel in the case of Shamayev and 12 Others v Georgia and Russia before the European Court of Human Rights. The case concerns the summary extradition of a group of Russian citizens of Chechen origin from Georgia to Russia where they are accused of terrorism and other related crimes. The applicants complain that the extradition to Russia exposes them to a risk of violation of their rights to life, freedom from torture and inhuman treatment, and fair trial. There were no effective remedies in respect of these violations. They also claim that their detention in Georgia was unlawful, and that they were not notified of the charges against them, and that there was no judicial review of the detention. After a hearing on 16 September 2003, the European Court of Human Rights (Second Section) declared the application admissible. The Court also decided to conduct a fact-finding mission in Georgia and Russia with a view to taking evidence from the applicants and witnesses. 

Click here for the press release about the admissibility hearing and here to read the Court's admissibility decision (available in French only).

As of 20 October 2003, the Government of the Russian Federation has refused to give the fact-finding mission access to five of the extradited applicants. Read the latest developments here in a press release from the ECtHR. At present, INTERIGHTS is advising the counsel for Shamayev and the other applicants in their final observations before the ECtHR.