Spectacular case illustrates the vitality of the European Court of Human Rights

vrijdag 6 september 2013, 11:05

The vitality of the European Court of Human Rights (ECHR) for the monitoring of rule of law in Europe could not be better illustrated than by a case. Professor Egbert Myjer, former judge of the ECHR, demonstrated the importance using the case of El-Masri versus the former Yugoslav Republic of Macedonia (FYROM), “of which the facts read like an unrealistic B-movie script.” 

Inquiries into secret CIA rendition in Europe

Myjer illustrated his argument by telling the compelling story of Khalid El-Masri, a German-born man from Lebanese decent who took a bus to go on holiday in December 2003. At the Serbian-Macedonian border suspicion arose about his recently issued German passport and El-Masri was detained in Macedonia. After about a month of interrogations and harassments El-Masri was offered the deal to return to Germany, if he confessed that he was a member of Al Qaeda. As El-Masri refused to make this confession he then got rendered to a CIA detention and interrogation camp in Afghanistan. Eventually the CIA found out that he was innocent, and El-Masri was transported back to Europe where he was released, after having been wrongfully detained for four months.

Back in Germany El-Masri went to  the European Court of Human Rights in Strasbourg on the basis of articles 3 (torture), 5 (illegal captivity), 8 (privacy) and 13 (no possibility to bring it to any judge) of the European Convention on Human Rights. This was after the case was already looked into by other rule of law monitoring mechanisms, for instance by Swiss senator Dick Marty who led an inquiry into CIA renditions for the Council of Europe. Marty published two reports, but all the accused states denied any involvement and described Marty “as a man with too much fantasy, who wrote his own fairy tale without taking into account any facts.”

Another inquiry into the issue was set up by the European Parliament in January 2006. This inquiry was led by MEP Claudio Fava and concluded that the CIA operated over 1200 flights within Europe in the period from 2001 to 2005. Although the European Parliament adopted a resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, governments kept denying involvement.  Javier Solana, secretary general of the EU at the time, stated it was outside of the competences of the European Parliament and political consequences could not ensue.  

Political power of a legally binding instrument

On the contrary, the European Court of Human Rights had a historical ruling on the December 13, 2012. It held FYROM responsible for the torture and ill-treatment of El-Masri both in the country itself and after his transfer to the CIA in the context of an extra-judicial rendition, and awarded El-Masri 60.000 euros in compensation. This not only had its consequences on FYROM, but will also undoubtedly reflect on the currently pending cases of secret rendition with other countries concerned.  After the ECHR judgment the political consequences are far more profound than those of the Marty and the Fava inquiries, which underlines the importance of an independent international court with legally binding instruments

In the discussion following the lecture some doubt persisted about the political achievements, as member states still have to execute the ECHR judgments. Professor Myjer responded that last year’s Brighton Conference discussed this issue and agreed that the Committee of Ministers of the Council of Europe should take a firmer stance towards member state who do not take measures to implement the ECHR rulings. Yet monitoring thus remains intrinsically political. However, ECHR rulings remain vital for the monitoring of rule of law, for instance because Governments cannot deny what happened after a judgment. People can point at the ECHR ruling and say: “Dear government, you’re lying as hell!”

This report was written by Institute Clingendael.