In this first case study, we will be exposed to many things in advance of learning about them systematically, such as the structure of human rights enforcement and the process of evaluating claims in the Human Rights Committee (which, as we will learn later, monitors a treaty called the International Covenant on Civil and Political Rights). You can simply register the importance of knowing these things later, but bypass them for now, in order to focus on the topic of this case study: what is a right in general, and what is the right to life in particular?
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,3
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,4
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,5
Whereas it is essential to promote the development of friendly relations between nations,6
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,7
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,8
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,9
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.10
All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.13
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.16
Everyone has the right to life, liberty and security of person.19
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.22
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.25
Everyone has the right to recognition everywhere as a person before the law.28
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.31
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.34
No one shall be subjected to arbitrary arrest, detention or exile.37
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.40
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.46
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.64
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.67
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.76
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.82
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.94
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Article 6 (1): Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Your main focus in reading this document is twofold. First, what happened? Second, what is a right (specifically, the right to life), such that the state might have violated it? Of less importance is the great deal of procedural detail — you can skim the parts of the decision that spell out what happened to the complaint (though we will still cover it to get an early sense of what kinds of processes human rights law can prompt).
Communication No. 45/1979
Submitted by: Pedro Pablo Camargo on 5 February 1979 on Behalf of the Husband of
Maria Fanny Suarez de Guerrero
Alleged Victim: Maria Fanny Suarez de Guerrero
State Party: Colombia
Date of adoption of views: 31 March 1982 (fifteenth session)
1.1 The communication (initial letter dated 5 February 1979 and further letters dated 26 June 1979, 2 June, 3 and 31 October 1980 and 2 January 1981) was submitted by Pedro Pablo Camargo, Professor of International Law of the National University of Colombia, at present residing in Quito, Ecuador. He submitted the communication on behalf of the husband of Maria Fanny Suarez de Guerrero.3
1.2 The author of the communication describes the relevant facts as follows: on 13 April 1978, the judge of the 77th Military Criminal Court of Investigation, himself a member of the police, ordered a raid to be carried out at the house at No. 136-67 Transversal 31 in the "Contador" district of Bogota. The order for the raid was issued to Major Carlos Julio Castano Rozo, the SIPEC Chief of the F-2 Police, Bogotd Police Department. The raid was ordered in the belief that Miguel de German Ribon, former Ambassador of Colombia to France, who had been kidnapped some days earlier by a guerrilla organization, was being held prisoner in the house in question. Those taking part in the raid were Captains Jaime Patarroyo Barbosa and Jorge Noel Barrero Rodriguez; Lieutenants Alvaro Mendoza Contreras and Manuel Antonio Bravo Sarmiento; Corporal First Class Arturo Martin Moreno; Constables Joel de Jesus Alarcon Toro, Joaquin Leyton Dominguez, Efrain Morales Cardenas, Gustavo Ospina Rios and Jaime Quiroga, and a driver, Jose de log Santos Baquero. In spite of the fact that Miguel de German Ribon was not found, the police patrol decided to hide in the house to await the arrival of the "suspected kidnappers". They were killed as they arrived. In this way, seven innocent human beings were shot dead: Maria Fanny Suarez de Guerrero, Alvaro Enrique Vallejo, Eduardo Sabino Lloredo, Blanca Florez Vanegas, Juan Bautista Ortiz Ruiz, Omar Florez and Jorge Enrique Salcedo. Although the police stated initially that the victims had died while resisting arrest, brandishing and even firing various weapons, the report of the Institute of Forensic Medicine (Report No. 8683, of 17 April 1978), together with the ballistics reports and the results of the paraffin test, showed that none of the victims had fired a shot and that they had all been killed at point-blank range, some of them shot in the back or in the head. It was also established that the victims were not all killed at the same time, but at intervals, as they arrived at the house, and that most of them had been shot while trying to save themselves from the unexpected attack. In the case of Mrs. Maria Fanny Sudrez de Guerrero, the forensic report showed that she had been shot several times after she had already died from a heart attack.4
1.3 The author adds that, according to witnesses, the victims were not given the opportunity to surrender. He mentions that the police stated that they were dealing with persons with criminal records but that subsequent investigation by the police did not prove that the victims were kidnappers.5
1.4 The author alleges that seven personsincluding Maria Fanny Sudrez de Guerrero-were arbitrarily killed by the police, that the police action was unjustified and that it has been inadequately investigated by the Colombian authorities. He claims that, at the beginning, the case was shelved under Legislative Decree 0070 of 20 3 January 1978 because the Colombian authorities considered that the police had acted within the powers granted by that Decree. He further alleges that there have been other cases of arbitrary killings by the army and the police on the pretext that they were dealing with suspicious people and that it has later been proved that the victims were either innocent or persecuted for political reasons.6
1.5 Legislative Decree No. 0070 introducing measures for the restoration of public order" amended article 25 of the Colombian Penal Code by adding a new paragraph 4. The substantive part of the Decree reads as follows:7
Article 1. For so long as public order remains disturbed and the national territory is in a state of siege, article 25 of the Penal Code shall read as follows:8
Article 25. The [penal] act is justified if committed:9
... (4) By the members of the police force in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping, and the production and processing of and trafficking in narcotic drugs.10
1.6 The author states that Legislative Decree No. 0070 of 1978 has established a new ground of defence against a criminal charge so as to justify crimes committed by members of the police force when they are taking part in operations to repress certain types of offences. In other words, the otherwise penal act is justified and does not give rise to penal responsibility when it is committed by members of the police force. He further argues that, if public authorities are allowed to kill an individual because he is suspected of having committed certain types of offences specified in Decree No. 0070, it means that they are allowed to commit arbitrary acts and, by doing so, to violate fundamental human rights, in particular the most fundamental one of all-the right to life. The author claims that Decree No. 0070 of 1978 violates articles 6, 7, 9 and 14 and 17 of the International Covenant on Civil and Political Rights because public authorities are allowed to violate the fundamental guarantees of security of person, of privacy, home and correspondence, individual liberty and integrity, and due process of law, in order to prevent and punish certain types of offences.11
1.7 The author states that domestic remedies to declare Decree No. 0070 unconstitutional have been exhausted, since there is a decision of the Supreme Court of Colombia of 9 March 1980 upholding the Decree's constitutionality.12
1.8 The author states that the case has not been submitted to any other procedure of international investigation or settlement.13
2. On 9 August 1979, the Human Rights Committee decided to transmit the communications to the State party, under rule 91 of the provisional rules of procedure, requesting information and observations relevant to the question of admissibility.14
3.1 By letter dated 5 May 1980, the State party refuted the allegations made by the author of the communication that the enactment of Legislative Decree No. 00'70 of 20 January 1978 constitutes a breach of articles 6, 7, 9, 14 and 17 of the Covenant.15
3.2 The State party submitted that it cannot reasonably be claimed that this Decree establishes the death penalty or empowers the police to practise torture or cruel, inhuman or degrading treatment or that it infringes the rights or guarantees established by articles 9, 14 and 17 of the Covenant. It cited the ruling on the scope of the Decree given by the Supreme Court of Justice in its judgement of 9 March 1978, by which it held the Decree constitutional. The Court said in particular:16
... as can be seen, the Decree, in article 1, paragraph 2 (4), introduces a temporary addition to the current text of article 25 of the Penal Code, for the purpose of creating a new defence to a criminal charge; the Decree provides that it is a good defence in answer to such a charge to show that the punishable act was "committed ... by the members of the police force in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping and the production and processing of and trafficking in narcotic drugs". This amendment contemplates a legal situation different from those referred to in the first three subparagraphs of article 25, which formerly constituted the entire article and hence has special characteristics.17
* See the text of Legislative Decree No. 0070 in the appendix below.18
The sense in which the provision in question creates a different legal situation is that it does not deal with a case of obedience to mandatory order given by a competent authority, nor with self-defence, nor with a state of necessity affecting an individual. The provision introduced by Decree No. 70 concerns another class of circumstances to justify action taken by the police with the object of preventing or curbing the offences of extortion, kidnapping and the production and processing of and trafficking in narcotic drugs.19
On the one hand, the provision is broad in scope in that it does not limit the means of action, for under the provision both armed force and other means of coercion, persuasion of dissuasion may be used.20
On the other hand, however, the provision limits the field of action to the objectives referred to therein, namely, preventing and curbing the offences of kidnapping, extortion and the production and processing of and trafficking in narcotic drugs ...21
The Court observed that the Decree was obviously related to the fact that the national territory was in a state of siege and it further stated:22
... this is a special measure that involves a right of social defence; for, on the one hand, it is legitimate that the members of the armed forces who are obliged to take part in operations like those described and whose.purpose it is to prevent or curb offences which, by their nature, are violent and are committed by means of violence against persons or property, should be protected by a justification of the punishable acts that they are constrained to commit, and, on the other hand, both the Government, acting on behalf of society, and society itself, have an interest in the defence of society and in ensuring that it is adequately defended by the agencies to which the law has entrusted the weapons for its defence.23
3.3 In considering the provisions of Decree No. 0070, the State party argued that it should be borne in mind that the new grounds do not establish a statutory presumption of justification of the act, for such a presumption must be expressed, as is required by article 232 of the Code of Criminal Procedure, which provides: "There is a statutory presumption if the law prescribes that an act shall constitute conclusive proof of another act". Accordingly, before the fourth ground in article 25 can be applied to a specific case, it is always necessary to weigh the circumstances of the act, in order to determine whether it is justifiable on that ground.24
3.4 With regard to the specific incident involving the death of Maria Fanny Suarez de Guerrero, the State party stated that: (a) in the course of a police operation on 13 April 1978 in the "Contador" district of Bogota the following persons died in the house at 136-67 Thirtyfirst Street: Maria Fanny Suarez de Guerrero, Alvaro Enrique Vallejo, Eduardo Sabino Lloredo, Blanca Florez Vanegas, Juan Bautista Ortiz Ruiz, Omar Florez and Jorge Enrique Salcedo; (b) the Office of the State Counsel for the national police instituted an administrative inquiry into the case and the judge of the 77th Criminal Military Court was ordered to hold a criminal investigation; (c) as a result of the criminal investigation, police captains Alvaro Mendoza Contreras and Jorge Noel Barrero Rodriguez, police lieutenant Manuel Bravo Sarmiento and officers Jesus Alarcon, Gustavo Ospina, Joaquin Dominguez, Arturo Moreno, Efrain Morales and Jose Sanchez were concerned in the criminal proceedings; (d) the trial had not yet been completed. Consequently, the State party submitted, domestic remedies of the local jurisdiction had not yet been exhausted.25
4.1 In his comments dated 2 June 1980, the author stated that "the new ground included in Decree No. 0070 of 1978 does indeed establish `a statutory presumption of justification of the act', because it is left to the police authorities themselves to determine what is justified, through the so-called `military criminal judges' and the Higher Military Court, even if the victim or victims are civilians. Up to now all extrajudicial deaths caused by the police force have been justified by the police force itself, without any intervention of the ordinary courts".26
4.2 As regards the events which took place in the "Contador" district of Bogota on 13 April 1978, the author maintained that it was the police themselves who entrusted the criminal investigation to the judge of the 77th Military Criminal Court and he, after more than two years, had not summoned those involved to appear in court: "There is no question of genuine criminal proceedings for, contrary to the principle that no one may be judge in his own cause, it is the police who have carried out the investigation with respect to themselves, and the military criminal procedure does not permit the civilian victims to be represented. Ordinary criminal procedure provides both for a criminal action and for a civil action for damages." The author further maintained that the Government of Colombia had not permitted the institution of civil proceedings on behalf of the victims in the military criminal case against the accused and he claimed that the application of domestic remedies was unreasonably prolonged.27
5. On 25 July 1980 the Human Rights Committee decided to request the State party to furnish detailed information as to:28
(a) How, if at all, the state of siege proclaimed in Colombia affected the present case;29
(b) Whether the institution of civil proceedings for damages had been permitted on behalf of the victims of the police operation on 13 April 1978 in the "Contador" district of Bogota, and, if not, the reasons for any refusal to permit such proceedings;30
(c) The reasons for the delay, for more than two years, in the adjudication of the Higher Military Court in the matter.31
6.1 By letters dated 9 September and 1 October 1980 the State party submitted further information.32
6.2 The State party maintained that the state of siege might affect this case if the following conditions were met:33
(a) If those responsible for the violent death of various persons in the "Contador" district police operation invoke in justification of the act the new ground provided in Decree 0070 of 1978 promulgated in exercise of the powers conferred by article 121 of the National Constitution;34
(b) If the Military Tribunal (Oral Proceedings) (Consejo de Guerra Verbal) which is to try those responsible for the acts in question agrees that the ground mentioned is applicable thereto. If it should consider that the ground is not applicable, no effect would derive from the state of siege. Only when the decision of the Military Tribunal is delivered will it be possible to establish whether, by virtue of Decree 0070 of 1978, the state of siege does in fact affect this case.35
The State party added:36
As regards the questions of trial formalities, jurisdiction and competence, the state of siege has no effect on either the criminal or the civil proceedings or the action under administrative law that could be brought if the injured parties claimed compensation for the damage suffered.37
6.3 As regards the question whether the institution of civil proceedings for damages had been permitted on behalf of the victims of the police operation, the State party affirmed that the institution of a civil action in conjunction with military proceedings was restricted to proceedings dealing with ordinary offences and that, since the present case was a military offence, no civil action could be instituted in conjunction with the military proceedings. Military offences are "those covered by the Code of Military Criminal Justice, committed by soldiers on active service and in relation to their service". However, the State party submitted that persons who have suffered loss or injury may apply to an administrative tribunal to obtain the appropriate damages on the ground of the extracontractual responsibility of the State. Such a claim may be made independently of the outcome of the criminal trial and even if it has not begun or been concluded. This is because the State must bear responsibility for the abuses and negligence of its agents when they unjustifiably result in damage. Thus the institution of a civil action in conjunction with military criminal proceedings is completely unimportant for this purpose, since another remedy is available to those suffering loss or injury. In addition, the State party explained that the Code of Military Criminal Justice contains the following provisions on compensation:38
Article 76. On any conviction for offences that result in loss or injury to any person, either natural or legal, those responsible shall be jointly sentenced to compensate for all such damage as has been caused.39
6.4 As regards the reasons for the delay, for more than two years, in the adjudication of the Higher Military Court in the matter, the State party submitted that this was due to the heavy workload of all the judges and prosecutors. The Office of the State Counsel for the National Police, which is responsible for exercising judicial supervision over the system of military criminal justice with regard to proceedings against national police personnel (Decree-Law 521 of 1971) through general and special inspections (Decree-Law 2500 of 1970), found that the delay in handling the case concerning the events in the "Contador" district was justified, since it was due to the heavy workload and not to negligence, it having been established that the judges produce a high monthly average of decisions.40
6.5 As regards the administrative inquiry instituted by the Office of the State Counsel for the national police into the incident in the "Contador" district, the State party in its letter of 1 October 1980 informed the Committee that this had been completed. The Office of the State Counsel had requested the dismissal of all the members of the patrol involved in the operation. This dismissal was ordered on 16 June 1980 and had been carried out.41
6.6 Nevertheless, the State party reiterated that domestic remedies had not been exhausted.42
7.1 In further letters dated 3 and 31 October 1980 the author submitted the following additional information: "... the investigation into the massacre on 13 April 1978 was conducted by the very police officer who had led the raid, namely Captain Carlos Julio Castano Rozo, the SIPEC Chief of the Bogota Police Department". He further stated in July 1980, the Inspector General of Police, General Fabio Arturo Londono Cardenas, acting as judge of first instance, issued an order for all criminal proceedings against those charged with the massacre to be discontinued, on the basis of article 417 of the Code of Military Criminal Justice, which states:43
Article 417. If, at any stage of the proceedings, it becomes fully established that the act for which charges have been laid or which is under investigation did not take place, or that it was not committed by the accused, or that the law does not consider it a criminal offence, or that there were no grounds for instituting or continuing the criminal proceedings, the judge of first instance or the investigating official shall, with the approval of the Public Prosecutor's department, issue an official ruling to that effect and shall order all proceedings against the accused to be discontinued. The author alleged that the Inspector General of Police invoked the ground of justification of the criminal act provided for in article 1 of Decree No. 0070, of 20 January 1978. This ruling went to the Higher Military Court for ex officio review. The Higher Military Court, through its Fourth Chamber, annulled the decision of the Inspector General of Police. The dossier then remained in the hands of the judge of first instance and the author stated that up to the date of his letter (3 October 1980) no order had been issued convening a military court to try the accused(Consejo de Guerra Verbal).44
7.2 However, in his letter of 2 January 1981, the author informed the Committee that on 30 December 1980 a military court acquitted the 11 members of the Police Department. He stated that Dr. Martinez Zapata, the lawyer for the "Contador" victims, was not allowed to attend the trial, submit appeals or make objections. He affirmed that the acquittal was based on Decree Law No. 0070 of 1978.45
7.3 The author further stated that as a result of the acquittal no administrative suit for compensation could be filed and the police officers and agents, who were dismissed on the recommendation of the Deputy Procurator General for Police Affairs, would be reinstated in their functions. The author had earlier stated:46
... in principle, an action for compensation may be brought before an administrative tribunal. However, if the accused are acquitted and the State turns out not to be responsible, how could such an action be brought before an administrative tribunal? It is quite clear, moreover, that the lawyers for the victims are not simply seeking compensation; above all they want justice to be done and a declaration that Legislative Decree No. 0070 of 1978 is manifestly a breach of articles 6, 7, 14 and 17 of the International Covenant on Civil and Political Rights.47
7.4 The author claimed that this was a serious case of a denial of justice which definitively confirmed that murders of civilians by the police would go unpunished.48
8.1 The Committee found, on the basis of the information before it, that it was not precluded by article 5 (2) (a) of the Optional Protocol from considering the communication since there was no indication that the same matter had been submitted under another procedure of international investigation or settlement.49
8.2 As to the question of exhaustion of domestic remedies, the Committee, having been informed by the author of the communication that on 30 December 1980 the military tribunal acquitted the 11 members of the Police Department who were on trial and this information not having been refuted by the State party, understood that the military tribunal found the measures taken by the police which resulted in the death of Maria Fanny Suarez de Guerrero to have been justified. It appeared from the information before the Committee that there was no further possibility of an effective domestic remedy in regard to the matters complained of. The Committee was therefore unable to conclude on the basis of the information submitted by the State party and the author, that there were still effective remedies available which could be invoked on behalf of the alleged victim. Accordingly the Committee found that the communication was not inadmissible under article 5 (2) (b) of the Optional Protocol. The Committee stated, however, that this decision could be reviewed in the light of any further explanations which the State party might submit under article 4 (2) of the Optional Protocol.50
9. On 9 April 1981, the Human Rights Committee therefore decided: .51
(a) That the communication was admissible;52
(b) That, in accordance with article 4 (2) of the Optional Protocol, the State party be requested to submit to the Committee, within six months of the date of the transmittal to it of this decision, written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by it. These should include a copy of the judgement of the military tribunal acquitting the members of the Police Department who were on trial.53
10. The time-limit for the State party's submission under article 4 (2) of the Optional Protocol expired on 26 November 1981. To date, no submission has been received from the State party in addition to those received prior to the decisions on admissibility.54
11.1 The Human Rights Committee had considered the present communication in the light of all information made available to it by the parties, as provided in article 5 (1) of the Optional Protocol. The Committee bases its views on the following facts, which are not in dispute or which are unrefuted by the State party.55
11.2 Legislative Decree No. 0070 of 20 January 1978 amended article 25 of the Penal Code "for so long as the public order remains disturbed and the national territory is in a state of siege" (see text of Decree in appendix below). The Decree established a new ground of defence that may be pleaded by members of the police force to exonerate them if an otherwise punishable act was committed "in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping, and the production and processing of and trafficking in narcotic drugs".56
11.3 On 13 April 1978, the judge of the 77th Military Criminal Court of Investigation, himself a member of the police, ordered a raid to be carried out at the house at No. 136-67 Transversal 31 in the "Contador" district of Bogota. The order for the raid was issued to Major Carlos Julios Castano Rozo, the SIPEC Chief of the F-2 Police, Bogota Police Department. The raid was ordered in the belief that Miguel de German Ribon, former Ambassador of Colombia to France, who had been kidnapped some days earlier by a guerrilla organization, was being held prisoner in the house in question.57
11.4 In spite of the fact that Miguel de German Ribon was not found, the police patrol decided to hide in the house to await the arrival of the "suspected kidnappers". Seven persons who subsequently entered the house were shot by the police and died. These persons were: Maria Fanny Suarez de Guerrero, Alvaro Enrique Vallejo, Eduardo Sabino Lloredo, Blanca Florez Vanegas, Juan Bautista Ortiz Ruiz, Omar Florez and Jorge Enrique Salcedo.58
11.5 Although the police initially stated that the victims had died while resisting arrest, brandishing and even firing various weapons, the report of the Institute of Forensic Medicine (Report No. 8683, of 17 April 1978), together with the ballistics reports and the results of the paraffin test, showed that none of the victims had fired a shot and that they had all been killed at pointblank range, some of them shot in the back or in the head. It was also established that the victims were not all killed at the same time, but at intervals, as they arrived at the house, and that most of them had been shot while trying to save themselves from the unexpected attack. In the case of Mrs. Maria Fanny Sudrez de Guerrero, the forensic report showed that she had been shot several times after she already died from a heart attack.59
11.6 The Office of the State Counsel for the national police instituted an administrative inquiry into the case. The administrative inquiry was completed and the Office of the State Counsel for the national police requested the dismissal of all the members of the patrol involved in the operation. This dismissal was ordered on 16 June 1980.60
11.7 In addition, the judge of the 77th Military Criminal Court was ordered to hold a criminal investigation into the case. The preliminary investigation of the case was conducted by Major Carlos Julio Castano Rozo. This investigation did not prove that the victims of the police action were kidnappers. In July 1980, the Inspector General of Police, acting as judge of first instance, issued an order for all criminal proceedings against those charged with the violent death of these seven persons during the police operation on 13 April 1978 in the "Contador" district of Bogota to be discontinued. This order was grounded on article 1 of Decree No. 0070. A Higher Military Court as a result of an ex officio review, annulled the decision of the Inspector General of Police. On 31 December 1980 a military tribunal (Consejo de Guerra Verbal), to which the case had been referred for retrial, again acquitted the 11 members of the Police Department who had been involved in the police operation. The acquittal was again based on Decree No. 0070 of 1978.61
11.8 At no moment could a civil action for damages be instituted in conjunction with the military criminal proceedings. An action for compensation for the persons injured by the police operation in the "Contador" district depended first on determining the criminal liability of the accused. The accused having been acquitted, no civil or administrative suit could be filed to obtain compensation.62
12.1 In formulating its views, the Human Rights Committee also takes into account the following considerations:63
12.2 The Committee notes that Decree No. 0070 of 1978 refers to a situation of disturbed public order in Colombia. The Committee also notes that the Government of Colombia in its note of 18 July 1980 to the Secretary-General of the United Nations (reproduced in document CCPR/C/2/Add.4), which was designed to comply with the formal requirements laid down in article 4 (3) of the Covenant, made reference to the existence of a state of siege in all the national territory since 1976 and to the necessity to adopt extraordinary measures within the framework of the legal regime provided for in the National Constitution for such situations. With regard to the rights guaranteed by the Covenant, the Government of Colombia declared that "temporary measures have been adopted that have the effect of limiting the application of article 19, paragraph 2, and article 21 of that Covenant". The Committee observes that the present case is not concerned with article 19 and 21 of the Covenant. It further observes that according to article 4 (2) of the Covenant there are several rights recognized by the Covenant which cannot be derogated from by a State party. These include articles 6 and 7 which have been invoked in the present case.64
13.1 Article 6 (1) of the Covenant provides:65
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.66
The right enshrined in this article is the supreme right of the human being. It follows that the deprivation of life by the authorities of the State is a matter of the utmost gravity. This follows from the article as a whole and in particular is the reason why paragraph 2 of the article lays down that the death penalty may be imposed only for the most serious crimes. The requirements that the right shall be protected by law and that no one shall be arbitrarily deprived of his life mean that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State.67
13.2 In the present case it is evident from the fact that seven persons lost their lives as a result of the deliberate action of the police that the deprivation of life was intentional. Moreover, the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions. There is no evidence that the action of the police was necessary in their own defence or that of others, or that it was necessary to effect the arrest or prevent the escape of the persons concerned. Moreover, the victims were no more than suspects of the kidnapping which had occurred some days earlier and their killing by the police deprived them of all the protections of due process of law laid down by the Covenant. In the case of Mrs. Maria Fanny Suarez de Guerrero, the forensic report showed that she had been shot several times after she had already died from a heart attack. There can be no reasonable doubt that her death was caused by the police patrol.68
13.3 For these reasons it is the Committee's view that the action of the police resulting in the death of Mrs. Maria Fanny Suarez de Guerrero was disproportionate to the requirements of law enforcement in the circumstances of the case and that she was arbitrarily deprived of her life contrary to article 6 (1) of the International Covenant on Civil and Political Rights. Inasmuch as the police action was made justifiable as a matter of Colombian law by Legislative Decree No. 0070 of 20 January 1978, the right to life was not adequately protected by the law of Colombia as required by article 6 (1).69
14. It is not necessary to consider further alleged violations, arising from the same facts, of other articles of the Covenant. Any such violations are subsumed under the even more serious violations of article 6.70
15. The Committee is accordingly of the view that the State party should take the necessary measures to compensate the husband of Mrs. Maria Fanny Suarez de Guerrero for the death of his wife and to ensure that the right to life is duly protected by amending the law.71
Decree No. 0070 of 20 January 197873
introducing measures for the restoration of public order74
The President of the Republic of Colombia in the exercise of the authority vested in him by article 121 of the National Constitution, and75
That, by Decree No. 2131 of 1976, the public order was declared to be disturbed and a state of siege was proclaimed throughout the national territory;77
That the disturbance of the public order has increased with the intensification of organized crime, particularly as a result of the commission of offences against individual freedom, against the life and integrity of the person and against the health and integrity of society;78
That it is the duty of the Government to take whatever measures are conducive to the restoration of a normal situation;79
Article 1. For so long as the public order remains disturbed and the national territory is in a state of siege, article 25 of the Penal Code shall read as follows:81
"Article 25. The act is justified if committed:
"(1) Pursuant to a legislative provision or to a mandatory order given by a competent authority;
"(2) By a person who is constrained to defend himself or another against a direct or wrongful act of violence against the person, his honour or his property, provided that the defence is proportionate to the attack;83
"The circumstances referred to in this subparagraph are presumed to exist in any case where a person during the night repels any person who climbs or forcibly enters the enclosure, walls, doors or windows of his dwelling or outbuildings, whatever the harm done to the attacker, or where a person finds a stranger in his dwelling, provided that in the latter case there is no justification for the stranger's presence in the premises and that the stranger offers resistance;84
"(3) By a person who has to save himself or another from a serious and imminent danger to the person which cannot be avoided in any other way, which is not the result of his own action and to which he is not exposed in the course of the exercise of his profession or occupation;85
"(4) By the members of the police force in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping, and the production and processing of and trafficking in narcotic drugs".86
Article 2. This decree shall enter into force on the date of its enactment and shall suspend any provisions inconsistent therewith.87
For transmittal and enforcement.
Done in Bogota, D.E., on 20 January 1978.
Again, your main inquiry in reading this case is to think about what the scope of the right to life is, and more generally what a right is – how do we think about its content and what effects invoking seem to have.
VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5,2
PARAGRAPH 4 OF THE OPTIONAL PROTOCOL TO THE3
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS4
Communication No. 763/19977
Submitted by: Ms. Yekaterina Pavlovna Lantsova, (represented by Ms.8
Karina Moskalenko, International Protection Center)9
Alleged victim: The author’s son Mr. Vladimir Albertovich Lantsov, deceased10
State party: The Russian Federation11
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,12
Meeting on 26 March 2002,13
Having concluded its consideration of communication No. 763/1997, submitted to the Human Rights Committee by Ms. Yekaterina Pavlona Lantsova, mother of Mr. Vladimir Albertovich Lantsov, deceased, under the Optional Protocol to the International Covenant on Civil and Political Rights.14
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol16
1. The author of the communication is Yekaterina Pavlovna Lantsova, mother of Vladimir Albertovich Lantsov, deceased. Mrs. Lantsova claims that her son, who was born on 27 June 1969, was a victim of violations by Russia of article 6, pragraph 1, article 7 and article 10, paragraph 1 of the International Covenant on Civil and Political Rights. She is represented by counsel.17
The facts as presented by the author
2.1 In August 1994, Mr. Lantsov, during an argument, inflicted injuries on another person, as a consequence of which both criminal and civil charges were pressed against him. On 1 March 1995, he made full reparation to the plaintiff for damages determined in the civil case. Awaiting his criminal trial, set for 13 April 1995, Mr. Lantsov was initially released. However, on 5 March 1995, after failing to appear for a meeting with the investigator, he was placed pre-trial detention at Moscow’s pre-trial detention centre, “Matrosskaya Tishina”, where he died on 6 April 1995, at the age of 25.
2.2 Mrs. Lantsova submits that her son was healthy when he first entered Matrosskaya Tishina, but that he fell ill due to the very poor conditions at the prison. She complains that her son was given no medical treatment despite repeated requests. Finally, she complains that the Russian Federation has failed to bring those responsible to justice.119
2.3 The author submits that the conditions at Moscow’s pre-trial detention centres are inhuman, in particular because of extreme overcrowding, poor ventilation, inadequate food and appalling hygiene. She refers to the 1994 report of the Special Rapporteur against torture to the Commission on Human Rights.2 Regarding access to health care, the report states that overcrowding exacerbates the inability of the staff to provide food and health care, and notes the high incidence of disease in the centres.3 Matrosskaya Tishina is held out for particular criticism in the report: “The conditions are cruel, inhuman and degrading; they are torturous”.420
2.4 According to Mrs. Lantsova, based on statements from other detainees in the cell with her son, shortly after he was brought to Matrosskaya Tishina his physical and mental state began to deteriorate. He began to lose weight and developed a temperature. He was coughing and gasping for breath. Several days before his death he stopped eating and drank only cold water. He became delirious at some point and eventually lost consciousness.21
2.5 It appears that other detainees requested medical assistance for Mr. Lantsov some time after the first week of his detention, that a medical doctor attended to him once or twice in the cell and that he was given aspirin for his temperature. However, between 3 and 6 April, during what was a rapid and obvious deterioration in his condition, he received no medical attention, despite repeated requests for assistance by the other detainees. On 6 April, after the other detainees cried out for assistance, medical personnel arrived with a stretcher. Mr. Lantsov died later that day in the prison clinic. His death certificate identifies the cause of death as “acute cardiac/circulatory insufficiency, intoxication, cachexia of unknown etiology”.22
2.6 With regard to the exhaustion of domestic remedies the author states that decision to open a criminal investigation into Mr. Lantsov’s death is within the competence of the chief of the pre-trial detention centre. A final decision on the matter lies with the procurator’s office. Mrs. Lantsov has made timely and repeated applications for a criminal investigation to be opened, but these were consistently denied. She therefore concludes that she has exhausted domestic remedies.23
2.7 The procurator’s decisions refusing to open a criminal investigation are based on the conclusion that the death in this case resulted from a combination of pneumonia and the stressful conditions of confinement, and that under these circumstances it would be impossible to find the detention centre personnel liable.24
3. Mrs. Lantsova claims that the Russian Federation violated her son’s fundamental human rights by causing his death as a result of confinement under conditions unfit for human survival, and that it also failed in its obligation to provide any meaningful legal protection against such violations. In her opinion, this constitutes violations of articles 6, paragraph 1, article 7 and article 10, paragraph 1 of the Covenant.
Decision on admissibility
4. By a note dated 23 March 1998, the State party informed the Committee that it did not object to the admissibility of the communication.
5.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether it is admissible under the Optional Protocol to the Covenant.27
5.2 The Committee has ascertained, as required under article 5, paragraph 2 (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.28
5.3 The Committee therefore decided, on 7 July 1998 at its sixty-third session, that the communication was admissible in so far as it may raise issues under article 6, paragraph 1, article 7 and article 10, paragraph 1 of the Covenant.29
The State party’s observations on the merits of the communication
6.1 In its observations on the merits of the communication, dated 28 December 1998, the State party states that Mr. Lantsov was arrested on 5 March 1995 and that on 7 March 1995 he was moved to a pre-trial detention centre and placed in a communal cell. On being admitted to the detention centre he underwent medical examinations, in accordance with the established procedure. At that time he expressed no complaints about his health, no physical anomaly was noted and a fluoroscopic examination of the chest showed no pathological condition. On 6 April 1995, at about 9 a.m., Mr. Lantsov’s fellow detainees informed the guards that he was not feeling well. After an examination by the duty doctor, Mr. Lantsov was urgently admitted to the hospital attached to the detention centre, but despite these measures he died at 9.15 a.m. A commission composed of doctors from the preventive medicine institutions attached to the Ministry of the Interior and the Moscow Department of Health carried out an investigation into Mr. Lantsov’s death. Its conclusions were that the cause of death had been bilateral ulcerative pneumococcic pneumonia, bilateral pleurisy and focal atelectasis leading to respiratory-cardiovascular failure. The general inflammation of the lungs and the pleural cavity, the patient’s failure to seek medical assistance and conditions in the prison had, in the State party’s opinion, contributed to the rapid fatal outcome.
6.2 The State party admits that at the time when Mr. Lantsov was detained, the detention centres (sledstvenii izoliator) held more than twice as many detainees as their design capacity, with the result that conditions of detention were not consistent with the regulations in force. The commission of inquiry concluded that there had been no medical error. The diagnosis of the causes of death had been confirmed in the post-mortem report prepared on 13 May 1995.31
6.3 In the absence of an offence, the Office of the Interregional Procurator for Moscow-Preobrajenskaya, the public prosecution department, did not initiate criminal proceedings. This decision was subsequently confirmed by the Moscow Procurator’s Office. During the review of the case it was established that the family had not been notified of the death promptly and that the officer concerned had been held accountable.32
6.4 The State party admits that, generally speaking, conditions in detention centres constitute a serious problem for Russia and that there is no prospect of an immediate solution. A set of measures to reform the prison system has been established, with a view to improving conditions in the detention centres and bringing them into line with international standards for the treatment of prisoners. The State party cites two presidential edicts and a government decree as examples of recent steps towards the transfer of responsibility for prison establishments from the Ministry of the Interior to the Ministry of Justice. An increase in the number of places in detention centres and prisons was under way, but was being impeded by financial difficulties.33
Author’s comments on the State party’s observations concerning the merits of the case
7.1 In her comments dated 21 December 2000, the author notes that the State party admits the most important facts of the case. Mr. Lantsov had entered the detention centre in perfect health, but conditions there caused his death.
7.2 She draws attentions to the fact that he had only been given 15 minutes’ medical attention before his death. Although the doctors had been informed some days before his death of his deteriorating state of health and the risk of death, they took no action. According to the author, such is common practice in that prison. With regard to the State party’s failure to properly investigate, the author recalls the testimony of various prisoners on this point and states that the prosecution department could have collected incriminatory statements if it had conducted a genuine inquiry by hearing testimony from Mr. Lantsov’s fellow prisoners. For some reason, the prosecution department did not make a proper inquiry.535
7.3 The author also rejects the State party’s observation that the detention centres contained only twice as many prisoners as they were designed for. The testimony showed that overcrowding in the centres was five times the indicated level and that detainees had to sleep in turn because of lack of beds.36
7.4 As regards the late notification of death to the family, the author states that in fact the authorities had never tried to notify anyone. Without Mr. Lantsov’s lawyer, who had tried to visit him, no one could be certain whether or when his mother would have learnt the truth about his death.37
7.5 Lastly, the author considers that the State party is trying to evade its responsibility by listing various future decrees which are intended to improve the situation in prisons. This, in her view, constitutes nothing less than acceptance by the State party of the inhuman standards in prisons. In any event, these decrees were adopted two years after her son’s death; current or future acts can change nothing, or cannot in any way change the fact that the Russian Federation violated the human rights of a 25-year-old man in good health and that those violations cost him his life.
Issues and proceedings before the Committee
8.1 The Human Rights Committee has considered this communication, taking account of all the written information submitted to it by the parties, in accordance with the provisions of article 5, paragraph 1, of the Optional Protocol.
8.2 The Committee must determine whether the State party violated articles 6, paragraph 1, article 7 and 10, paragraph 1 of the Covenant in connection with the death of the author’s son.39
9.1 Regarding the conditions of detention, the Committee notes that the State party concedes that prison conditions were bad and that detention centres at the time of the events held twice the intended number of inmates. The Committee also notes the specific information received from the author, in particular that the prison population was, in fact, five times the allowed capacity and that the conditions in Matrosskaya Tishina prison were inhuman, because of poor ventilation, inadequate food and hygiene. The Committee finds that holding the author’s son in the conditions prevailing at this prison during that time entailed a violation of his rights under article 10, paragraph 1 of the Covenant.40
9.2 Concerning the death of Mr. Lantsov, the Committee notes the author’s allegations, on the strength of testimony by several fellow detainees, that after the deterioration of the health of the author’s son, he received medical care only during the last few minutes of his life, that the prison authorities had refused such care during the preceding days and that this situation caused his death. It also takes note of the information provided by the State party, namely that several inquiries were carried out into the causes of the death, i.e. acute pneumonia leading to cardiac insufficiency, and that Mr. Lantsov had not requested medical assistance. The Committee affirms that it is incumbent on States to ensure the right of life of detainees, and not incumbent on the latter to request protection. The stated intention of the State party to improve conditions has no impact in the assessment of this case. The Committee notes that the State party has not refuted the causal link between the conditions of the detention of Mr. Lantsov and the fatal deterioration of his state of health. Further, even if the Committee starts from the assertion of the State party that neither Mr. Lantsov himself nor his co-detainees had requested medical help in time, the essential fact remains that the State party by arresting and detaining individuals takes the responsibility to care for their life. It is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility. The Committee considers that a properly functioning medical service within the detention centre could and should have known about the dangerous change in the state of health of Mr. Lantsov. It considers that the State party failed to take appropriate measures to protect Mr. Lantsov’s life during the period he spent in the detention centre. Consequently, the Human Rights Committee concludes that, in this case, there has been a violation of paragraph 1 of article 6 of the Covenant.41
9.3 In the light of the above findings of violations of article 6 and article 10 of the Covenant. The Committee does not consider it necessary to pronounce itself on a violation of article 7.42
10. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the State party failed in its obligation to ensure the protection of Mr. Lantsov, who lost his life as a direct result of the existing prison conditions. The Committee finds that articles 6, paragraph 1, and article 10, paragraph 1 of the Covenant were violated.
11. The Committee is of the view that Mrs. Lantsova is entitled, under article 2, paragraph 3 (a) of the Covenant, to an effective remedy. The State party should take effective measures: (a) to grant appropriate compensation (b) to order an official inquiry into the death of Mr. Lantsov; and (c) to ensure that similar violations do not recur in the future, especially by taking immediate steps to ensure that conditions of detention are compatible with the State party’s obligation under articles 6 and 10 of the Covenant.
12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee’s Views. In addition, it requests the State party to publish the Committee’s Views.
[Adopted in English, French and Spanish, the English text being the original version. Subsequently, to be issued in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]44
1 The communication also indicates that notification of Mr. Lantsov’s death was not given to the family or to the local registry office until 11 April 1995, after Mr. Lantsov’s lawyer had discovered the fact of his death while at the detention centre to meet with him. This matter was apparently examined by the chief of the pre-trial detention centre (according to the letter of 10 July 1995 from the deputy city procurator, provided with the communication), but the results of this investigation are unknown.46
2 Report of the Special Rapporteur, Mr. Nigel S Rodley, submitted pursuant to Commission on Human Rights resolution 1994/37 (E/CN.4/1995/34/Add.1).47
3 Ibid, para. 41.48
4 Ibid, para. 71.49
5 The author invokes the testimony of Mr. Igor Cripenevitch, who stated that Mr. Lantsov had been seriously ill during the last week and that during the last three days, when he had been critically ill, the authorities had refused to help him. The file contains copies of the refusals of the prosecution department to initiate criminal proceedings against the detention centre, and states that Mr. Lantsov’s fellow prisoners had been questioned but that their testimony had been contradictory: some had stated that in the two or three days before the death doctors had examined Mr. Lantsov, while others had denied that (reply of the Interregional Procurator for Preobrajenskaya Prokuratura of 9 April 1996, exhibit No. 7).
Similarly, in this case (in a national constitutional court) we are interested in the substance and scope of the right to life, and more generally how best to think about what a human right is.
Supreme Court of India
OLGA TELLIS & ORS.
BOMBAY MUNICIPAL CORPORATION & ORS. ETC.
JULY, 10, 1985
The Judgment of the Court was delivered by:
These Writ Petitions portray the plight of lakhs of persons who live on pavements and in slums in the city of Bombay. They constitute nearly half the population of the city. The first group of petitions relates to pavement dwellers while the second group relates to both pavement and Basti or Slum dwellers. Those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they ease, for no conveniences are available to them. Their daughters, come of age, bathe under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness. The cooking and washing over, women pick lice from each others hair. The boys beg. Menfolk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say : "Who doesn’t commit crimes in this city ?"
It is these men and women who have come to this Court to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation. They rely for their rights on Article 21 of the Constitution which guarantees that no person shall be deprived of his life except according to procedure established by law. They do not contend that they have a right to live on the pavements. Their contention is that they have a right to live, a right which cannot be exercised without the means of livelihood. They have no option but to flock to big cities like Bombay, which provide the means of bare subsistence. They only choose a pavement or a slum which is nearest to their place of work. In a word, their plea is that the right to life is illusory without a right to the protection of the means by which alone life can be Lived. And, the right to life can only be taken away or abridged by a procedure established by law, which has to be fair and reasonable, not fanciful or arbitrary …
On behalf of the Government of Maharashtra, a counter-affidavit has been filed by V.S.Munje, Under Secretary in the Department of Housing. The counter-affidavit meets the case of the petitioners thus. The Government of Maharashtra neither proposed to deport any pavement dweller out of the city of Bombay nor did it, in fact, deport anyone. Such of the pavement dwellers, who expressed their desire in writing, that they wanted to return to their home towns and who sought assistance from the Government in that behalf were offered transport facilities up to the nearest rail head and were also paid railway fare or bus fare and incidental expenses for the onward journey. …
The counter-affidavit says that no person has any legal right to encroach upon or to construct any structure on a footpath, public street or on any place over which the public has a right of way. …
As we have stated while summing up the petitioners' case, the-main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and. pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which people their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood…
Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21. …
Turning to the factual situation, how far is it true to say that if the petitioners are evicted from their slum and pavement dwellings, they will be deprived of their means of livelihood? It is impossible, in the very nature of things, together reliable data on this subject in regard to each individual petitioner and, none has been furnished to us in that form. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. …
But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty, by Article 21, such deprivation has to be according to procedure established by law. In the instant case, the law which allows the deprivation of the right conferred by Article 21 is the Bombay Municipal Corporation Act, 1888…
These provisions, which are clear and specific, empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. It is undeniable that, in these cases, wherever constructions have been put up on the pavements, the public have a right of passage or access over those pavements. The argument: of the petitioners is that the procedure prescribed by section 314 for the removal of, encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before the removal of an encorahcment but, it provides expressly that the Municipal Commissioner may cause the encroachment to be removed "without notice"…
Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must confirm to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: The action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must that the procedure established by law under which that action is taken is itself unreasonable. …
Having given our anxious and solicitous consideration to this question, we are of the opinion that the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act for removal of encroachments on the footpaths or pavements over which the public has the right of passage or access, cannot be regarded as unreasonable, unfair or unjust. … The challenge of the petitioners to the validity of the relevant provisions of the Bombay Municipal Corporation Act is directed principally at the procedure prescribed by section 314 of that Act … What section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. …
It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature Intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule (>Hear the other side=) could be presumed to have been intended….
It may be true to say that, in the generality of cases, persons who have committed encroachments on pavements or on other public properties may not have an effective answer to give. It is a notorious fact of contemporary life in metropolitan cities, that no person in his senses would opt to live on a pavement or in a slum, if any other choice, were available to him. Anyone who cares to have even a fleeting glance at the pavement or slum dwellings will see that they are the very hell on earth. But, though this is so, the contention of the Corporation that no notice need be given because, there can be no effective answer to it, betrays a misunderstanding of the rule of hearing, which is an important element of the principles of natural justice. The decision to dispense with notice cannot be founded upon a presumed impregnability of the proposed action. “At stake here is not Just the much-acclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the very essence of justice", (See "American Constitutional Law" by Laurence H. Tribe, Professor of Law, Harvard University, 503). The instrumental facet of the right of hearing consists in the means which it affords of assuring that the public rules of conduct, which result in benefits and prejudices alike, are in fact accurately and consistently followed. …
There is no short term or marginal solution to the question of squatter colonies, nor are such colonies unique to the cities of India. Every country, during its historical evolution, has faced the problem of squatter settlements and most countries of the under-developed world face this problem today. Even the highly developed affluent societies face the same problem, though with their larger resources and smaller populations, their task is far less difficult. The forcible eviction of squatters, even if they are resettled in other sites, totally disrupts the economic life of the household. It has been a common experience of the administrators and planners that when resettlement is forcibly done, squatters eventually sell their new plots and -return to their original sites near their place of employment. Therefore, 'what -is of crucial importance to the question of thinning out the squatters' colonies in metropolitan cities is to create new opportunities for employment in the rural sector and to-spread the existing job opportunities evenly in urban areas. Apart from the further misery and degradation which it involves, eviction of slum and pavement dwellers is an ineffective remedy for decongesting the cities. In a highly readable and moving account of the problems which the poor have to face, Susan George says in How the Other Half Dies - The Real Seasons for World Hunger (Pelican Books): … "Malnourished babies, wasted mothers, emaciated corpses in the streets of Asia have definite and definable reasons for existing. Hunger may have been the human race's constant companion, and 'the poor may always be with us', but in the twentieth century, one cannot take this fatalistic view of the destiny of millions of fellow creatures. Their condition is not inevitable but is caused by identifiable forces within the province of rational, human control.”
To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public purpose like, for example, a garden or a playground; that the provision contained in section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the State Government in its pleadings here which, we repeat, must be made good. Stated briefly, pavement dwellers who were censured or who happened to be censured in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or accommodation will be provided to them, the ‘Low Income Scheme Shelter Programme’ which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly; and, the Slum Upgradation Programme (SUP) under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31,1985 and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date, parties may apply to this Court. Pavement dwellers, whether censured or uncensured, will not be removed until the same date viz. October 31, 1985.
The Writ Petitions will stand disposed of accordingly. There will be no order as to costs.
Our goal in the readings in this section is to think about how to defend (or oppose) the idea that individuals have rights in virtue of their humanity. After reading an excerpt from John Locke, we turn to a description of how philosophers today have argued with one another about the foundations of human rights. You should not try to master this material or even read it carefully. As the syllabus says, we are only looking at the first and third parts of the essay in any case. As you read, you should think about how (if at all) it might be relevant to human rights law.
John Locke (1632-1704) was a famous English philosopher (and terrorist) commonly thought to have helped inspire the American Revolution thanks to his argument that natural rights justify violent rebellion. Our question, looking briefly at Locke, is where he thinks individual rights come from, and whether we think he is correct.
John Locke, Two Treaties of Government (1690)2
Sect. 4. TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.4
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty. …5
Sect. 6. But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.6
Sect. 7. And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man's hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world 'be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do….7
Sect. 95. MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.9
Sect. 123. IF man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? why will he give up this empire, and subject himself to the dominion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.11
Sect. 124. The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting.12
First, There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them: for though the law of nature be plain and intelligible to all rational creatures; yet men being biassed by their interest, as well as ignorant for want of study of it, are not apt to allow of it as a law binding to them in the application of it to their particular cases.13
Sect. 125. Secondly, In the state of nature there wants a known and indifferent judge, with authority to determine all differences according to the established law: for every one in that state being both judge and executioner of the law of nature, men being partial to themselves, passion and revenge is very apt to carry them too far, and with too much heat, in their own cases; as well as negligence, and unconcernedness, to make them too remiss in other men's.14
Sect. 126. Thirdly, In the state of nature there often wants power to back and support the sentence when right, and to give it due execution, They who by any injustice offended, will seldom fail, where they are able, by force to make good their injustice; such resistance many times makes the punishment dangerous, and frequently destructive, to those who attempt it.
Jeremy Bentham, Anarchical Fallacies (1796)
The Declaration of Rights -- I mean the paper published under that name by the French National Assembly in 1791 -- assumes for its subject-matter a field of disquisition as unbounded in point of extent as it is important in its nature. But the more ample the extent given to any proposition or string of propositions, the more difficult it is to keep the import of it confined without deviation, within the bounds of truth and reason. If in the smallest corners of the field it ranges over, it fail of coinciding with the line of rigid rectitude, no sooner is the aberration pointed out, than (inasmuch as there is no medium between truth and falsehood) its pretensions to the appellation of truism are gone, and whoever looks upon it must recognise it to be false and erroneous, -- and if, as here, political conduct be the theme, so far as the error extends and fails of being detected, pernicious. …
The great enemies of public peace are the selfish and dissocial passions: -- necessary as they are -- the one to the very existence of each individual, the other to his security. On the part of these affections, a deficiency in point of strength is never to be apprehended: all that is to be apprehended in respect of them, is to be apprehended on the side of their excess. Society is held together only by the sacrifices that men can be induced to make of the gratifications they demand: to obtain these sacrifices is the great difficulty, the great task of government. What has been the object, the perpetual and palpable object, of this declaration of pretended rights? To add as much force as possible to these passions, already but too strong, -- to burst the cords that hold them in, -- to say to the selfish passions, there - everywhere -- is your prey! -- to the angry passions, there - everywhere -- is your enemy.
Such is the morality of this celebrated manifesto, rendered famous by the same qualities that gave celebrity to the incendiary of the Ephesian temple.
The logic of it is of a piece with its morality: -- a perpetual vein of nonsense, flowing from a perpetual abuse of words, -- words having a variety of meanings, where words with single meanings were equally at hand -- the same words used in a variety of meanings in the same page, -- words used in meanings not their own, where proper words were equally at hand, -- words and propositions of the most unbounded signification, turned loose without any of those exceptions or modifications which are so necessary on every occasion to reduce their import within the compass, not only of right reason, but even of the design in hand, of whatever nature it may be; -- the same inaccuracy, the same inattention in the penning of this cluster of truths on which the fate of nations was to hang, as if it had been an oriental tale, or an allegory for a magazine: -- stale epigrams, instead of necessary distinctions, -- figurative expressions preferred to simple ones, -- sentimental conceits, as trite as they are unmeaning, preferred to apt and precise expressions, -- frippery ornament preferred to the majestic simplicity of good sound sense, -- and the acts of the senate loaded and disfigured by the tinsel of the playhouse. ...
The end in view of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
Sentence 1. The end in view of every political association, is the preservation of the natural and imprescriptible rights of man.
More confusion -- more nonsense, -- and the nonsense, as usual, dangerous nonsense. The words can scarcely be said to have a meaning: but if they have, or rather if they had a meaning, these would be the propositions either asserted or implied: --
Such are the notions implied in this first part of the article. How stands the truth of things? That there are no such things as natural rights -- no such things as rights anterior to the establishment of government -- no such things as natural rights opposed to, in contradistinction to, legal: that the expression is merely figurative; that when used, in the moment you attempt to give it a literal meaning it leads to error, and to that sort of error that leads to mischief -- to the extremity of mischief.
We know what it is for men to live without government -- and living without government, to live without rights: we know what it is for men to live without government, for we see instances of such a way of life -- we see it in many savage nations, or rather races of mankind; for instance, among the savages of New South Wales, whose way of living is so well known to us: no habit of obedience, and thence no government -- no government, and thence no laws -- no laws, and thence no such things as rights -- no security -- no property: --liberty, as against regular controul, the controul of laws and government --perfect; but as against all irregular controul, the mandates of stronger individuals, none. In this state, at a time earlier than the commencement of historv -- in this same state, judging from analogy, we the inhabitants of the part of the globe we call Europe, were; -- no government, consequently no rights: no rights, consequently no property -- no legal security -- no legal liberty: security not more than belongs to beasts -- forecast and sense of insecurity keener -- consequently in point of happiness below the level of the brutal race.
In proportion to the want of happiness resulting from the want of rights, a reason exists for wishing that there were such things as rights. But reasons for wishing there were such things as rights, are not rights; -- a reason for wishing that a certain right were established, is not that right -- want is not supply -- hunger is not bread.
That which has no existence cannot be destroyed -- that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonscnse, -- nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle. …
As with the right to life, the right to privacy provides us with another example of a specific right, whose content, scope, and application have to be determined. The details do not matter, so much as what contemporary debates about the right to privacy — and especially its so-called extraterritorial application — suggest about the value and limits of legal protection based on rights. In reading the materials, think not just about what content and limits the right to privacy has according to different sources, but also what political or other processes the invocation of a right unleashes.
Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 2 (1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 17 (1): No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2): Everyone has the right to the protection of the law against such interference or attacks.
European Convention on Human Rights (ECHR) (1950)
Article 1: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Article 8 (1): Everyone has the right to respect for his private and family life, his home and his correspondence. (2): There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Fourth Annual Report, UN Doc. A/69/397 (2014), ¶¶ 6-19, 28-30, 35-43, 45-52
Last Friday a unanimous Grand Chamber of the European Court delivered a hugely important judgment in Roman Zakharov v. Russia, no. 47143/06, in which it found serious and systematic faults with the Russian legislative framework regulating the surveillance of mobile communications. This is set to be a leading Strasbourg authority on assessing the compliance of surveillance measures with human rights law, a topic we’ve already extensively discussed on the blog. This judgment important for a number of reasons.
First, because a unanimous Grand Chamber reaffirmed much of relatively older or Chamber-based case law, and applied the principles it identified robustly. This provides an important indication that the Court remains acutely aware of the dangers surveillance programs possibly pose to democratic societies, and that it will also scrutinize such programs robustly in the cases shortly coming before it, e.g. against the United Kingdom. I must say that I was particularly struck by how the Russian judge in the Court, Judge Dedov, concluded his concurring opinion with a quote from Edward Snowden – with the added irony of Snowden still continuing his sojourn in Russia, the very country whose regulatory system of surveillance the Court exposed as so sorely inadequate.
Second, more specifically, the Court affirmed the relatively broad approach to standing that it had already taken in cases such as Klass and Kennedy. This approach has two strands: (1) if an individual claims that they have themselves been subjected to surveillance, they have to show only a ‘reasonable likelihood’ of being so subjected, rather than having to furnish conclusive proof, which would in most cases be impossible to obtain; (2) alternatively, and very much exceptionally in the Convention system, applicants can challenge the surveillance regulatory framework in abstracto, without alleging that they’ve been spied upon themselves. Roman Zakharov was precisely an example of the latter situation, and so will be the majority of future surveillance cases. This is how the Court now articulates the abstract review standard:
71. In the Court’s view the Kennedy approach is best tailored to the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court. Accordingly, the Court accepts that an applicant can claim to be the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures, if the following conditions are satisfied. Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his or her communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. As the Court underlined in Kennedy, where the domestic system does not afford an effective remedy to the person who suspects that he or she was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified (see Kennedy, cited above, § 124). In such circumstances the menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. There is therefore a greater need for scrutiny by the Court and an exception to the rule, which denies individuals the right to challenge a law in abstracto, is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify. In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures.
72. The Kennedy approach therefore provides the Court with the requisite degree of flexibility to deal with a variety of situations which might arise in the context of secret surveillance, taking into account the particularities of the legal systems in the member States, namely the available remedies, as well as the different personal situations of applicants.
78. Having regard to the secret nature of the surveillance measures provided for by the contested legislation [in Russia], the broad scope of their application, affecting all users of mobile telephone communications, and the lack of effective means to challenge the alleged application of secret surveillance measures at domestic level, the Court considers an examination of the relevant legislation in abstracto to be justified.
The Court’s liberal approach to standing contrasts markedly to the very narrow one taken in the United States, as e.g. in Clapper v. Amnesty International. Because the merits then depend on abstract review, a lot of substantive work in the Court’s jurisprudence is done by the formal ‘in accordance with the law’ criterion under Article 8 ECHR, which incorporates elements of the necessity in a democratic society test. Third, in performing this abstract review the Court took a variety of elements into account (para. 238): ‘the accessibility of the domestic law, the scope and duration of the secret surveillance measures, the procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data, the authorisation procedures, the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law.’ And these were the principal faults that the Court identified in the Russian regulatory framework:
-The breadth of discretion granted to the executive in cases dealing with national, military, economic and ecological security (para. 248);
-Lack of sufficient safeguards against abuse with regard to the discontinuation of surveillance measures (para. 251);
-The continued storage of data which proves to be irrelevant (para. 255), as well as the unlimited storage of interception evidence after the conclusion of a criminal trial (para. 256);
-The fact that while Russian law requires prior judicial authorization for interception measures, Russian judges in practice only apply purely formal criteria in deciding whether to grant an authorization, rather than verifying the necessity and proportionality of imposing such measures (para. 263);
-The fact that Russian ‘courts sometimes grant interception authorisations which do not mention a specific person or telephone number to be tapped, but authorise interception of all telephone communications in the area where a criminal offence has been committed’ (para. 265);
-That the emergency procedure provided for in Russian law, which enables interception without judicial authorization, does not provide sufficient safeguards against abuse (para. 266);
-That the secret services had direct remote access to the databases and networks of communications service providers, thus enabling them to easily circumvent even the existing legal safeguards, in particular because they were not required to serve a judicial order to service providers before collecting data (paras. 268-271);
-That the equipment installed by the secret services keeps no logs or records of intercepted communication, which coupled with the direct access rendered any supervisory arrangements incapable of detecting unlawful interceptions (para. 272);
-That judicial involvement was limited solely to the authorization stage, with the courts having no continuous supervisory function (para. 274);
-That supervisory functions within the executive branch were entirely unregulated, while other mechanisms (such as prosecutorial oversight) were lacking in independence and not open to any significant public scrutiny (paras. 277-283);
-That the government was unable to provide the Court with any examples of effective prosecutorial oversight (para. 284);
-That judicial remedies in Russia were generally ineffective, particularly in light of the total absence of any notification requirement with regard to the interception subject, without any meaningful ability of retrospective challenges to surveillance measures (para. 300).
The Court thus concluded that:
03. It is significant that the shortcomings in the legal framework as identified above appear to have an impact on the actual operation of the system of secret surveillance which exists in Russia. The Court is not convinced by the Government’s assertion that all interceptions in Russia are performed lawfully on the basis of a proper judicial authorisation. The examples submitted by the applicant in the domestic proceedings (see paragraph 12 above) and in the proceedings before the Court (see paragraph 197 above) indicate the existence of arbitrary and abusive surveillance practices, which appear to be due to the inadequate safeguards provided by law (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92; and, by contrast, Klass and Others, cited above, § 59, and Kennedy, cited above, §§ 168 and 169).
04. In view of the shortcomings identified above, the Court finds that Russian law does not meet the “quality of law” requirement and is incapable of keeping the “interference” to what is “necessary in a democratic society”.
05. There has accordingly been a violation of Article 8 of the Convention.
It is particularly noteworthy that in its review the Court did not simply look at the provisions of Russian law on their face, but also at how they were applied in practice. Indeed, looking at the many defects identified by the Court, by comparison US and UK laws on surveillance positively look like masterpieces of effective regulation and oversight.
In sum, the detail and rigour of the Court’s analysis, as well as the Grand Chamber’s unanimity in reaching its decision, both indicate that the Court will seriously scrutinize the surveillance practices and legislation of European states, as cases against them come before it. What remains to be seen is how the Court will evaluate systems of bulk collection, how it will address problems raised by extraterritorial surveillance, and those posed by the involvement of third states. If this judgment is to serve as any guide, however, the Court does not seem likely to approach such questions timidly.
Jennifer Daskal, “The Un-Territoriality of Data,” Yale Law Journal, 2015 (footnotes omitted)
In December 2013, United States federal law enforcement agents served a seemingly innocuous search warrant on Microsoft, demanding information associated with a Microsoft user’s web-based e-mail account. But there was a problem—the e-mails sought by the government were located in a data-storage center in Dublin, Ireland. Consequently, Microsoft refused to turn over the e-mails, claiming that the government’s warrant authority did not extend extraterritorially; the warrant was therefore invalid. The government, along with the magistrate judge and district court, disagreed—concluding that the relevant reference point for purposes of warrant jurisdiction was the location of the provider (in this case Microsoft), not the location of the data.1 Because the Ireland-based data could be accessed and retrieved by Microsoft employees within the United States, the warrant was territorial—not extraterritorial—and therefore valid.2
The question of where the relevant state action takes place when the government compels the production of e-mails from an Internet Service Provider (ISP) is one of first impression and is now being litigated before the Second Circuit. It has garnered the attention of communication companies throughout the United States, the Irish government, the European Parliament, media outlets, the U.S. Chamber of Commerce, and a wide array of commentators.3 In a strongly worded letter, the former European Union Justice Commissioner warned that execution of the warrant may constitute a breach of international law4—a sentiment echoed in the amicus briefs supporting Microsoft.5 But this statement simply assumes the answer to the key questions that the case poses: where does the key state action occur? At the place where data is accessed or the place where it is stored?
The dispute lays bare the extent to which modern technology challenges basic assumptions about what is “here” and “there.” It challenges the centrality of territoriality within the relevant statutory and constitutional provisions governing the search and seizure of digitized information. After all, territorial-based dividing lines are premised on two key assumptions: that objects have an identifiable and stable location, either within the territory or without; and that location matters—that it is, and should be, determinative of the statutory and constitutional rules that apply. Data challenges both of these premises. First, the ease, speed, and unpredictability with which data flows across borders make its location an unstable and often arbitrary determinant of the rules that apply. Second, the physical disconnect between the location of data and the location of its user—with the user often having no idea where his or her data is stored at any given moment—undercuts the normative significance of data’s location.
This is not to say that tangible objects are immovable or that they are always co-located with their owner. Both people and objects travel from place to place. And people can be, and often are, separated from their tangible property by an international boundary. But the movement of people and their physical property is a physically observable event, subject to readily apparent technological and physical limitations that affect how quickly bodies and tangible things can travel through space. By contrast, the movement of data from place to place often happens in a seemingly arbitrary way, generally without the conscious choice—or even knowledge—of the data “user” (by which I mean the person with a reasonable expectation of privacy in the data, such as the user associated with a particular e-mail account).6 An e-mail sent from Germany, for example, may transit multiple nations, including the United States, before appearing on the recipient’s device in neighboring France. Contact books created and managed in New York may be stored in data centers in the Netherlands. A document saved to the cloud and accessed from Washington, D.C., may be temporarily stored in a data storage center in Ireland, and possibly even copied and held in multiple places at once. These unique features of data raise important questions about which “here” and “there” matter; they call into question the normative significance of longstanding distinctions between what is territorial and what is extraterritorial. Put bluntly, data is destabilizing territoriality doctrine.
Data also challenges territoriality’s twentieth-century companion criteria—citizenship and national ties—as determinative of the constitutional and statutory rules that apply. It is now widely accepted that both citizens and noncitizens with substantial voluntary connections to the United States enjoy basic constitutional protections (including the protections of the Fourth Amendment) even when they are located outside the United States’ borders.7 Conversely, the Fourth Amendment does not protect noncitizens outside the United States, absent sufficient voluntary connections to the nation.8 Thus, territoriality doctrine, at least for constitutional purposes, involves a two-part inquiry into territoriality and target identity—with target identity turning on the depth of the target’s connections to the United States.
But just as data highlights the arbitrariness of making the location of mobile zeroes and ones determinative of the rights and obligations that apply, data also exposes the problems with making identity determinative of such rights and obligations. Digital footprints are neither observable nor readily identifiable as “belonging” to a particular person. While an Internet Protocol (IP) address might reveal a user’s location, the use of anonymizing services and other tools designed to protect the user’s privacy (or evade detection) can make even the task of identifying a data user’s location exceedingly difficult, let alone the user’s citizenship or depth of connection to the United States.9 While similar identification problems occur in the world of tangible property, the ubiquitous and intermingled nature of data compounds the problem of identification in both degree and kind. This problem is particularly acute in the context of mass surveillance, where the sheer quantity of data collected necessitates the use of presumptions as a basis for establishing identity. The vast quantity of data collected means that even a low error rate will yield large quantities of data associated with misidentified users.
This Article takes up the challenge that data—in particular its mobility, interconnectedness, and divisibility—poses to territoriality doctrine and its focus on user identity. To be clear from the outset, I do not purport to provide all of the answers, a task that requires far more than a single article. Rather, the aim of this Article is threefold: first, to expose the fiction of territoriality in a world of highly mobile, intermingled, and divisible data; second, to highlight flaws in the territoriality doctrine; and third, to suggest alternative approaches to thinking about the scope of the Fourth Amendment, the rules governing the acquisition of foreign intelligence information, and the territorial limits on law enforcement jurisdiction.
In so doing, this Article fills an important gap in the literature. While there was, beginning in the 1990s, a surge of scholarship on the borderless Internet’s effect on sovereignty, the literature focused largely on private law (such as e-commerce and trademarks) and associated regulatory issues.10 In contrast, scholarly literature has devoted comparatively little attention to the constitutional and sovereignty implications of the government reaching or sending its agents across borders to search and seize. Orin Kerr offers perhaps the most sustained attention to the issue, but he does so while focusing primarily on border searches and with the goal of maintaining the Fourth Amendment’s territorial-based distinctions.11 I, by contrast, argue that data challenges territoriality doctrine at its core, requiring us to reconsider—and in some cases reject—the territorial-based distinctions as they apply to the search and seizure of digital data.
The Article proceeds in three parts. Part I begins by analyzing the longstanding presumption against extraterritoriality, examining its dominant (and often confused) constitutional, statutory, and jurisdictional applications. It explores the underpinnings of the now-dominant view that only certain “people”—namely U.S. citizens, noncitizens with substantial voluntary connections to the United States, and those physically present in the United States—are entitled to Fourth Amendment rights and heightened statutory protections with respect to foreign intelligence surveillance.
This Part also highlights the very different purposes that territoriality serves within the context of the Fourth Amendment doctrine (and, by extension, surveillance law) and within the context of warrant jurisdiction. The Fourth Amendment imposes restrictions on the government’s authority to search and seize; by contrast, warrants provide the government the affirmative authorization to do so. Thus, whereas territoriality for Fourth Amendment purposes is based on an understanding of who is entitled to privacy rights vis-à-vis the U.S. government, territorial-based limits on warrant jurisdiction are based on respect for other nations’ sovereignty coupled with pragmatic concerns about the difficulty of unilaterally enforcing a warrant within another nation’s borders.
Part II highlights the ways in which data challenges key underlying presumptions about territoriality across each of these areas of the law. This Part identifies central differences between data and its tangible counterparts, focusing in particular on data’s mobility, divisibility, and interconnectedness. It also examines the location independence of data and its user, referring to the user’s lack of knowledge or explicit choice as to the location of his or her data at any given moment.
Finally, Part III argues that these differences between data and its tangible counterparts matter, but in the exact opposite way from what the government has suggested. These differences both compel a rethinking of a territorial Fourth Amendment and highlight the dangers of unilateral, extraterritorial law enforcement that data enables. More specifically, I argue that the intermingling and mobility of data mean that territorial and identity-based distinctions at the heart of the Fourth Amendment and the statutory scheme governing foreign intelligence surveillance no longer serve the interests they are designed to protect, at least as applied to the acquisition (or seizure) of data. Large quantities of protected persons’ data are being incidentally collected under the much more permissive rules governing the collection of nonprotected persons’ information. In their current form, these rules no longer provide the kind of protections for U.S. citizens and those located within the United States that they were designed to ensure. This discrepancy calls for a rethinking of the Fourth Amendment’s reach.
The goal of Unit One of the course is to step back from human rights to survey important elements of international law and U.S. foreign affairs law, to better understand the legal setting in which human rights can be claimed and enforced.
Underlying spectrum from non-existent to utopian domestic human rights regime
States bound by customary international law
States ratify international or regional rights treaties
Domestic enforcement by state of its own rights regime (if any)
International enforcement: human rights treaties set up a supranational enforcement regime
Intersection: Domestic enforcement of the international rights regime
DISTINCT POSSIBILITIES OF RELATIONSHIP OF DOMESTIC AND INTERNATIONAL
No connection, achieved through one or both of:
Non-ratification of treaty
Non-implementation of ratified treaty and non-cognizance of customary norm
International enforcement provides for monitoring domestic regime, with (optional) advice to change it
International enforcement allows individual appeal from domestic political or judicial process to international forum (judicial or other)
International law either viewed as automatically part of domestic law or affirmatively brought into it through domestic implementation process, erasing distinction between international and domestic law
International interpretations of treaties and custom bind domestic actors (judicial or other)
Why would the content of domestic and international rights regimes converge and diverge?
Why would a state with a non-existent to weak domestic rights regime ratify international human rights treaties?
Why would a state with a strong to utopian domestic rights regime ratify (redundant?) international human rights treaties?
Is the best path given finite energy reforming (or creating in the first place) domestic rights regimes, or building international regime? If the latter, is the best path working on strong international enforcement, or seeking “domestication” of international norms even without international enforcement?
Of the possibilities of relating domestic and international law, which are best (and, if more than one, in what combination)?
Statute of the International Court of Justice (1945)
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.