Legal Remedies for Human Rights Violations in the Armed Conflict in Chechnya: The Approach of the European Court of Human Rights in Context

2010 ◽  
Vol 1 (2) ◽  
pp. 275-303 ◽  
Author(s):  
Kirill Koroteev
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Burden Of Proof ◽  
Armed Conflicts ◽  
Reasonable Doubt ◽  
Human Rights Violations ◽  
Legal Remedies ◽  
European Court ◽  
The Russian Federation ◽  
Assessment Of Evidence

AbstractThe article discusses the efficacy of the remedies offered to successful applicants by the European Court of Human Rights in the cases coming from the armed conflict in the Chechen Republic of the Russian Federation. It submits, firstly, that proper establishment of facts constitutes a remedy in itself for victims of human rights violations in an armed conflict. It then analyses the establishment of facts by the Court in the Chechen cases and argues that the assessment of evidence under the Court's burden of proof 'beyond reasonable doubt' was applied unevenly in different cases. The paper suggests that the Court obtains evidence proprio motu, which it has never done in the Chechen cases. Secondly, this paper evaluates the European Court's practice to limit the just satisfaction by monetary awards and to consistently deny the applicants' requests for non-monetary awards. It then discusses the developments in the international law on reparations for human rights violations under the ECHR and in the Inter-American and UN systems, and argues for a need to enhance the European Court's awards of just satisfaction. Finally, the paper assesses the supervision of the execution of judgments in the Chechen cases, finds it ineffective, and suggests that more actions are required from the Court in order to deal effectively with alleged human rights violations arising from armed conflicts.

3 Right to be Presumed Innocent

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Burden Of Proof ◽  
Reasonable Doubt ◽  
International Human Rights ◽  
The Rule Of Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Assessment Of Evidence ◽  
The Right

This chapter focuses on the right to be presumed innocent, one of the most ancient and important principles of criminal justice, and a prerequisite for any system based on the rule of law. The right is absolute and non-derogable and, at its core, prohibits convictions that are predetermined or based on flimsy grounds. International human rights bodies have therefore found that where a conviction is based on non-existent, insufficient, or unreliable evidence, the presumption has been violated and a miscarriage of justice has occurred. More frequently, international human rights bodies have applied the presumption to require specific procedural protections during a trial. These include guarantees that the prosecution bears the burden of proving a defendant’s guilt beyond reasonable doubt, and that the defendant should not be presented or described as a criminal before he has been proved to be one. The chapter concludes that the presumption is protected in similar terms in international human rights treaties, but also highlights divergences in international jurisprudence relating to the standard for finding that a court’s assessment of evidence violates the presumption, the permissibility of reversing the burden of proof, and the extent to which the presumption applies after a trial has been completed.

Features of the Court Session in Resolving Issues of Detentionas a Preventive Measure

2020 ◽  
Vol 3 ◽  
pp. 73-78
Author(s):  
O. V. Kachalovа ◽  
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Burden Of Proof ◽  
Preventive Measure ◽  
Factual Information ◽  
European Court ◽  
The Supreme Court ◽  
Judicial Investigation ◽  
Criminal Procedure Law ◽  
The Russian Federation

The problem of the validity and duration of detention can be solved, inter alia, by strengthening the adversarial nature of the court»s decision on the application of this preventive measure. The purpose of the article is to determine the appropriate possibilities of research in court in the conditions of competition and equality of the parties of factual information and data submitted by the parties in order to resolve the issue of the possibility of the use of detention or extension of its terms. Based on the analysis of the norms of the criminal procedure law, the positions of the European Court of human rights, the Supreme Court of the Russian Federation, doctrinal sources, the use of formal logical, statistical and other methods, the author comes to the following conclusions. The burden of proof of the absence of grounds for detention cannot be placed on the accused. The need to study specific facts and materials that indicate the existence of the above conditions and grounds, determines the need for a specific judicial investigation on this issue. Research of the presented materials is carried out in court session with participation of the parties on the terms of competition. In this case, the court may not enter into a discussion on the guilt of a person, but only to establish the presence or absence of grounds and conditions for the detention of a person. If the prosecution party has not submitted the relevant materials for investigation in the court session, the court may not grant the investigator's request for detention or extension of its terms. The request of the defence for the examination of witnesses, whose testimony can have a significant impact on the resolution of the question of the presence or absence of the grounds and conditions for detention must be satisfied by the court in case they are grounded, motivated and are of direct relevance to the issue under consideration.

scholarly journals REVISITING THE BIPOLAR DISTINCTION IN THE CHARACTERISATION OF ARMED CONFLICTS

2010 ◽  
Author(s):  
W Ochieng
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Human Rights Violations ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Traditional Understanding

Since the Geneva Conventions, the architecture of International Humanitarian Law (IHL) has been founded upon a distinction between international armed conflict and non-international armed conflict. Today, this claim stands to be revisited since international and non-international armed conflicts are no longer strict organising frameworks for the categorisation of rules of armed conflicts. This is seen in that over fifty years ago, when the four Geneva Conventions were negotiated, the principles of sovereignty and non-intervention were the cornerstones of international law and while their force today is still apparent, the interdependence of states, and global concerns such as terrorism and the commission of widespread human rights violations have eroded the traditional inviolability of borders. The dichotomy in humanitarian law is as implausible today as it is also fundamentally unworkable given the current conditions of conflicts. This dualist conception is no longer adequate to deal with current features of armed conflict, which do not fit neatly into the two categories and frequently contain mixed elements which thus make the task of classification highly complex. The codification of customary rules of international humanitarian law has narrowed the grounds on which the distinctions are predicated. In addition, the two regimes apply simultaneously on multiple situations. Moreover, the question of contemporary armed conflicts raises serious doubts as to whether the traditional understanding of international law still suffices to explain the complexities of modern day armed conflicts. This essay seeks to offer a different perspective on armed conflicts by suggesting a systematic rethinking of the categorisation of conflict. It argues that some of the dilemmas of contemporary conflicts may be attenuated by a new conceptualisation of this bipolar distinction namely a need for a unitary conception of armed conflict.

scholarly journals On Inter-State Litigation and Armed Conflict Cases in Strasbourg

2021 ◽  
pp. 1-48
Author(s):  
Philip Leach
Keyword(s):  
Human Rights ◽  
Eastern Europe ◽  
Armed Conflict ◽  
Human Rights Violations ◽  
Council Of Europe ◽  
Regular Feature ◽  
Member States ◽  
Related Individual ◽  
European Court ◽  
Inter State

Abstract The reluctance of Council of Europe member states to challenge each other at the bar of Europe, through the litigation of inter-state cases at the European Court, used to be a regular feature of the Strasbourg system. However, conflicts of different kinds in eastern Europe have led to a surge of such cases in recent years, as well as the introduction of thousands of related individual applications. The serious challenges presented, in particular by conflict-related cases, have led some commentators to question whether they can feasibly remain part of the Strasbourg process. For others, the focus should rather be on how such cases can be more effectively processed and assessed. This article emphasises the significance of both inter-state cases in general, and of cases arising from armed conflict (including individual applications): their political and legal importance; their centrality to the European human rights system; and how vital they are for individual victims of human rights violations. It analyses a number of controversial or challenging aspects of the adjudication of these cases, and puts forward some proposals for reform.

Returning the ‘Fallen Terrorist’ for Burial in Non-international Armed Conflicts

2019 ◽  
Vol 10 (2) ◽  
pp. 337-370
Author(s):  
Frédéric Mégret ◽  
Chloe Swinden
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Armed Groups ◽  
International Human Rights ◽  
European Court ◽  
International Human ◽  
Russian Law

Although the regime applicable to the return of remains of combatants in international armed conflict is well known, the regime applicable in non-international armed conflicts is less clear. This is particularly the case when the members of armed groups are deemed to be ‘terrorists’ by the State which then refuses to return them to their families. The article examines how a Russian law to that effect has been examined and found wanting by the European Court of Human Rights. It suggests that the return of remains following non-international armed conflicts raises characteristic issues for the debate on the simultaneous and competing applicability of international humanitarian and international human rights law.

Presumption of Innocence as a Principle of Administrative Offense Proceedings

2021 ◽  
Vol 1 ◽  
pp. 30-34
Author(s):  
Artem R. Nobel ◽  
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Presumption Of Innocence ◽  
Judicial Practice ◽  
European Court ◽  
The Russian Federation

The presumption of innocence is defined as one of the key principles of proceedings on the cases of administrative offenses. Using the current legislation, the legal positions of the highest courts of the Russian Federation and the European Court of Human Rights, judicial practice, the author reveals the essence of the presumption of innocence by highlighting the elements of this principle and characterizing their content.

The Security Council on women in war: between peacebuilding and humanitarian protection

2010 ◽  
Vol 92 (877) ◽  
pp. 197-219 ◽  
Author(s):  
Alain-Guy Tachou-Sipowo
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Security Council ◽  
Armed Conflict ◽  
Active Participation ◽  
Human Rights Violations ◽  
Humanitarian Law ◽  
Women In War

AbstractHaving established that massive human rights violations in armed conflict constitute a threat to peace and that women are the most severely affected by the scourge of war, the Security Council has since 1999 adopted a number of resolutions intended specifically for this group. These instruments contribute to the development of humanitarian law applicable to women and acknowledge the value of active participation by women in peace efforts. The following article first analyses the foundations on which the Council has been able to assume responsibility for protecting women in situations of armed conflict, and then considers the actual protection it provides. It concludes that the Council has had varying success in this role, pointing out that the thematic and declaratory resolutions on which it is largely based are not binding and therefore, they are relatively effective only as regards their provisions committing United Nations bodies. The author proposes that the Council's role could be better accomplished through situational resolutions than through resolutions declaratory of international law.

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