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IHR LEGAL Newsletter

IHR LEGAL Newsletter

October – December 2022

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In this issue:

Highlights of our latest newsletter

  • On December 16, 2022, the OHCHR published a report urging to rethink temporary labor migration programs. According to the OHCHR, such programs impose serious restrictions and can cause serious human rights violations. The report covers several key topics, including the responsibility of States, the consequences of these programs, and the recommendations for States to mitigate human rights violations against these workers.

 

  • On October 4, 2022, the ACHPR made an urgent appeal for the cessation of massive human rights violations against the Benet Mosopisyek community in Uganda. The ACHPR received reports showing that the Benet indigenous people have faced forced evictions, numerous acts of violence, intimidation, threats, sexual violence, destruction, and confiscation of property carried out by members of the Uganda Wildlife Authority (UWA). Consequently, the ACHPR requested the State to cease all violence and harassment.

 

  • On October 13, 2022, the ECtHR ruled that national courts failed to strike a balance between the interests at stake in a case in which an activist of the Femen movement held a topless protest in a church. After being convicted for her protest, the applicant brought the case before the ECtHR, alleging a violation of her right to freedom of expression. The ECtHR concluded that her right to freedom of expression had been violated since, according to its analysis, the applicant sought through her action to contribute to the public debate on women’s rights, particularly on abortion.

 

  • On November 8, 2022, the IACHR published its third report of the special follow-up mechanism on the Ayotzinapa case, regarding the 43 missing students from the “Raúl Isidro Burgos” rural school in Ayotzinapa, Mexico. The students have been missing since September 26, 2014, when they were attacked by the police after getting into a bus that The IACHR has monitored the actions taken by Mexico and in its last report made a series of recommendations to the State.

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News concerning the universal system and regional systems for the promotion and protection of human rights

I. UNIVERSAL HUMAN RIGHTS SYSTEM

1. Office of the United Nations High Commissioner for Human Rights (OHCHR)

The OHCHR is the principal human rights entity of the United Nations. Its functions include promoting and protecting all human rights, helping to empower people, and developing a human rights perspective in all United Nations programs. The current United Nations High Commissioner for Human Rights is Mr. Volker Türk.

News from the OHCHR:

—On December 16, 2022, the OHCHR published a report urging the rethink of temporary labor migration programs. Temporary labor migration programs are mostly predominant in Asia and the Gulf Cooperation Council (GCC) countries. However, they impose restrictions and can cause severe violations of human rights. The report is of high relevance and covers a number of essential topics, including the responsibilities of duty-bearers (the role of States), the human rights consequences of temporary labor migration programs which cover impacts on the right to an adequate standard of living and the right to social security, among others. On the other hand, the report details several lessons learned from the pandemic and also outlines numerous recommendations to States to mitigate human rights violations against these workers. The recommendations include minimum requirements for these programs, such as: committing States to respect, protect and fulfill all human rights during migration, including the context of return and guaranteeing just and favorable conditions of work (fair wages and remuneration equal to that of nationals), in order to enable migrant workers to be able to realize an adequate standard of living for themselves and their families. The report can be found here and the press release here.

—On December 6, 2022, the OHCHR launched a practical guide to developing comprehensive anti-discrimination legislation and protecting minority rights. The guide, divided into six parts, deals with the most diverse aspects involving anti-discrimination law and was jointly published with the Equals Rights Trust (ERT). The OHCHR brought to light the obligations of States to enact comprehensive anti-discrimination laws, the content of comprehensive anti-discrimination laws, the need to protect minority rights, details about discriminatory violence and hate crime, the relation between discrimination and freedom of expression, the obligations to address the roots causes of discrimination, among a series of other issues. According to the OHCHR, comprehensive anti-discrimination laws have the potential to be transformative, and “at the simplest level, these laws can foster positive change by increasing understanding of discrimination, stimulating action to prevent it, and ultimately fostering a commitment to eliminate it”. The practical guide can be found here.

2. Committee against Torture (CAT)

The CAT is the United Nations’s body of independent experts that monitors the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

News from the CAT:

On November 29, 2022, the CAT issued a joint statement with the Subcommittee on the Prevention of Torture (SPT) expressing disapproval of Nicaragua’s refusal to cooperate to prevent torture in the country. Although Nicaragua ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2005 and the Optional Protocol in 2009, the State has failed to cooperate with the CAT and the SPT and has even questioned the legitimacy of the UN treaty bodies as a whole. An example of this is that in July 2022, Nicaragua did not send a delegation to participate in the public review during the CAT session. Consequently, the CAT had to examine the country report in the absence of the State. Subsequently, when it sent it to the State for comments, it did not provide any feedback. This not being sufficient, the State authorities denied the SPT’s plan to visit Nicaragua in 2023 and did not provide information on measures taken to implement the recommendations of the SPT report after its visit to the country in 2014. Therefore, the SPT requested the CAT to make a public statement and release the 2014 report that was previously confidential. In the words of SPT’s Chairperson Suzanne Jabbour: “States need to be held accountable for failing to prevent torture and ill-treatment, including by not providing information on their implementation of the SPT’s visit recommendations, as is the case for Nicaragua, following our 2014 visit”. The press release can be found here and the 2014 visit report here.

3. Committee on the Rights of the Child (CRC)

The CRC is the United Nations body of independent experts that monitors the implementation of the Convention on the Rights of the Child.

News from the CRC:

On October 12, 2022, the CRC found that Finland, by failing to repatriate six Finnish children held in a camp in northern Syria, had violated their human rights. The facts of the case refer that on an unknown date, six children and their mothers were evacuated from the city of Baghuz in Syria to the Hawl camp, which is under the control of the Syrian Democratic Forces. The parents of the six children have allegedly collaborated with the Islamic State (ISIL). The children were and to date still are in a situation of irreparable harm, as the conditions in the camp are extremely poor, with overcrowding, limited food, and poor hygiene conditions, as well as a lot of coercion. Most of the child victims are in miserable situations, with malnutrition, speech and movement difficulties, and pneumonia, among others. Yet the government of Finland announced that it would not assist, help, or repatriate the children.

Based on these facts, the CRC considered that the State party, as the State of the children’s nationality, has the ability and the power to protect the rights of the children in the case through actions that could repatriate them or at least provide consular assistance. In this regard, the CRC further highlighted the fact that the Syrian Democratic Forces have already demonstrated a willingness to cooperate in repatriations, which they have done by repatriating at least 26 children from camps in northern Syria since 2019. On the other hand, the CRC noted that the State party is aware of the situation of the children in question, as well as the deplorable conditions in which they are living, and thus there is a violation of the right to life (Article 6 (1)). Furthermore, the CRC decided that because the children are being subjected to cruel, inhuman, and degrading treatment, there has also been a violation of article 37 (a), which prohibits any such treatment. The decision can be found here and the press release here.

II. AFRICAN HUMAN RIGHTS SYSTEM

1. African Commission on Human and Peoples’ Rights (ACHPR)

The ACHPR is a quasi-jurisdictional body, within the framework of the African Union, whose main function is to protect and promote human and people´s rights in African countries. Among its functions are to process complaints from individuals or States about human rights violations committed by States in the region, and to receive periodic reports from States on the human rights situation in their country.

News from the ACHPR:

On October 4, 2022, the ACHPR made an urgent appeal for the cessation of massive human rights violations against the Benet Mosopisyek Community in the Republic of Uganda. The ACHPR received reports demonstrating that since the Republic of Uganda’s 1993 decision to establish the Mount Elgon National Park (MENP), the indigenous “Benet Peoples” have been facing forceful evictions, which were not backed up by free, prior, and informed consent (FPIC), nor by the provision of adequate compensation and/or other alternative resettlement. In addition, the ACHPR alleged its grave concern, based on reports it had received, about the numerous acts of violence, intimidation, threats, sexual violence, destruction, and confiscation of property carried out by members of the Uganda Wildlife Authority (UWA) in the process of implementing the 1993 decision. Consequently, the ACHPR made a series of requests to the Government of the Republic of Uganda, such as to take appropriate measures to ensure the cessation of all forms of harassment or violence against the indigenous Benet community, and hence guarantee their safety and security and to urgently initiate thorough, independent, and impartial investigations into all violations against the Benet Peoples. The press release can be found here.

III. EUROPEAN HUMAN RIGHTS SYSTEM

1. European Court of Human Rights (ECtHR)

The ECtHR is a judicial body of the Council of Europe whose main function is to monitor the compliance of States parties with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The ECtHR is responsible for analyzing complaints from individuals, groups of individuals, or States for human rights violations committed by States that have accepted the ECtHR’s jurisdiction.

News from the ECtHR:

On October 13, 2022, the ECtHR found that domestic courts failed to strike a balance between the interests at stake in a case in which a Femen activist held a topless protest in a church. Eloise Bouton, the applicant, was a member of the Femen movement, an international women’s rights organization created in Ukraine in 2008, known for its polemic actions. On December 20, 2013, she held a brief protest at La Madeleine church in Paris, in which she stood in front of the high altar while exposing her breasts, revealing phrases written on her body, and pretending she was performing an abortion. As soon as she was asked to leave, she did so, and her action was widely covered by the media, with about ten journalists present. Thereafter, the parish priest filed a criminal complaint and applied to join the proceedings as a civil party. The Criminal Court sentenced the applicant, on the charge of sexual exposure, to a suspended term of one month’s imprisonment and ordered her to pay the parish of 2,000 euros (EUR) as non-pecuniary damage and to contribute EUR 1,500 to the other party’s costs. Subsequently, the applicant complained about her criminal conviction for acts of sexual exposure by reason of Article 10 (freedom of expression) by submitting an application to the ECtHR on May 19, 2019. Also, relying on Article 7 (no punishment without law), she complained of the vagueness and expansive interpretation of the offense of “sexual exposure”.

The ECtHR ruled that there was a violation of article 10 of the Convention since the applicant’s freedom of expression should have been given a sufficient level of protection as the content of her message related to a matter of public interest. Furthermore, the ECtHR found that the intention of the applicant, who was not accused of insulting or hate-related conduct, was to contribute to the public debate on women’s rights, particularly in relation to abortion rights. In relation to article 7, the ECtHR held that since there was a violation of article 10, it was not necessary to decide separately. The decision (in French) can be found here and the press release can be found here.

IV. INTER-AMERICAN HUMAN RIGHTS SYSTEM

1. Inter-American Commission on Human Rights (IACHR)

The IACHR is the autonomous body of the Organization of American States (OAS) responsible for the promotion and protection of human rights in the Americas. One of its duties is to receive and review complaints from individuals about human rights violations and to monitor human rights situations.

News from the IACHR:

On November 8, 2022, the IACHR published the third report of the special follow-up mechanism on the Ayotzinapa case, regarding 43 missing students from the “Raúl Isidro Burgos” rural school in Ayotzinapa, Mexico. The facts of the case occurred on September 26, 2014, when students from the rural school of Ayotzinapa were attacked by police officers after boarding a bus that was going to take them to Mexico City to participate in a protest commemorating the Tlateloco massacre that occurred on October 2, 1968. Since then, the whereabouts of the 43 students are unknown. As a result, in 2014, the IACHR adopted Precautionary Measure 409/14 ordering the State to conduct searches for the missing students and that the events be duly investigated. Later, the IACHR deemed it necessary to establish a follow-up mechanism for the case, which resulted in the publication of three reports.

The IACHR has monitored in situ the State’s actions in relation to four components: (i) the investigation to determine criminal responsibility for the facts; (ii) the search for the 43 missing students; (iii) the attention to the victims and their families; and (iv) structural measures in the area of the disappearance of persons in Mexico. In one of the topics of the report, in which the IACHR dealt with the main advances in the clarification of the facts of the matter, it was noted that the progress made refers to the collection and gathering of evidence on the phenomenon of violence in Guerrero, the attacks suffered by the students, their deprivation of liberty, their forced disappearance, and the formulation of hypotheses on the possible fates of the students. In addition, ​​the main developments in terms of justice resulted in the identification of alleged perpetrators, the filing of new charges, and the initiation of criminal proceedings in court to determine the criminal responsibility of public officials and members of criminal groups who participated in the attacks and forced disappearances.

The IACHR expressed a series of recommendations to the State and claimed that the determination of the whereabouts of the students should guide the investigation strategy of the Ayotzinapa case and that it stems from the international human rights treaties to which Mexico is a party and from the ius cogens obligation regarding the prohibition of the forced disappearance of persons. The third report (in Spanish) can be found here and the press release (in Spanish) here.

On November 2, 2022, the Office of the Special Rapporteur for Freedom of Expression (SRFOE) of the IACHR expressed extreme concern as it reported the highest number of journalists killed since 1998 in the Americas. According to the SRFOE, by 2022, at least 37 journalists, from 10 of the 35 OAS member States, were killed in the Americas for reasons that may be related to their profession. Therefore, this was the year in which the most journalists were killed since the publication of its first annual report, published 24 years ago in 1998. “In contexts of democratic erosion such as those faced by much of the region today, the press is not only a crucial means of keeping citizens informed on matters of public relevance and oxygenating public debate but also plays a role in defending and promoting freedom of expression and human rights”, the SRFOE stressed. In this regard, the SRFOE noted that in several countries of the region, violence against journalists is related to the rise of violent organized crime groups. In its concluding remarks, the SRFOE expressed that the lack of a truly strong institutional reaction is a permissive engine for the constant repetition of violence against the media, calling and encouraging states to fight impunity. The press release can be found here.

—On October 5, 2022, the Office of the Special Rapporteur for Freedom of Expression (SRFOE) of the IACHR and the United Nations Educational, Scientific and Cultural Organization (UNESCO) started a project that seeks to strengthen the participation of different actors in the Americas during the Universal Periodic Review (UPR). The project is estimated to have a duration of six months and will address issues related to freedom of expression, the safety of journalists, and access to information. The SRFOE stated that it has noted an accelerated increase in aggressions, intimidations, and acts of violence against the press in the Americas in recent years, indicating that fostering successful collaboration between the Inter-American Human Rights System and the United Nations is crucial to guarantee that different mechanisms work together to promote freedom of expression, the safety of journalists, and access to information. In the first stage of the project, the SRFOE will collect information on the systems and challenges submitted by multiple stakeholders in the Americas during the process of gathering and analysis of information for submission to the UPR. Afterward, the findings will be examined to strengthen the stakeholders and identify their “best practices” and “recurring challenges” in developing inputs for the UPR submissions. The press release can be found here.

2. Inter-American Court of Human Rights (IACtHR)

The IACtHR is a regional human rights court responsible for applying and interpreting the Inter-American Convention on Human Rights and other human rights instruments in the region. Its main function is to decide cases on human rights violations committed by States that have accepted its jurisdiction.

News from the IACtHR:

On November 21, 2022, the IACtHR held the Ecuatorian State internationally responsible for the extrajudicial execution of Joffre Antonio Aroca Palma in the course of police intervention in Guayaquil. On February 27, 2001, Joffre was outside his home in the city of Guayaquil, Ecuador, when he was arrested by police officers. After entering the police vehicle, National Police Second Lieutenant Carlos Eduardo Rivera Enriquez instructed the driver to enter the esplanade of the Isidro Romero stadium. At that location, the victim was taken to the upper part of the stadium when a detonation of a firearm was heard and the police officers returned without the victim. As a result, on April 19, 2002, the Superior Officers Criminal Court of the National Police issued a sentence declaring the criminal responsibility of Second Lieutenant Rivera Enriquez as the perpetrator of the crime of caused homicide or murder, imposing on him a sentence of eight years of major incarceration. However, on March 15, 2012, the Tenth Court of Criminal Guarantees of Guayas, at the request of Rivera Enriquez, declared the prescription of the sentence imposed on him.

Initially, the IACtHR found a violation of the victim’s right to life (article 4), which derived from an arbitrary exercise of force by a state agent resulting in death. The IACtHR also found that the victim’s right to personal liberty (article 7) was violated as his detention did not comply with the requirements of a judicial order, nor did it respond to a situation of flagrancy, nor did it comply with the requirement of legality. Additionally, it was considered that the victim’s right to personal integrity (article 5) was violated because he suffered anguish, anxiety, and fear due to the real possibility that the events would culminate in his own death, in clear violation of his psychological and moral integrity. Finally, it was also declared a violation of judicial guarantees and judicial protection (articles 8 and 25), as well as of the personal integrity of the victim’s family members. The decision can be found here and the press release (in Spanish) here.

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