Monday, April 16, 2012

Janowiec and Others v. Russia

As far as I can tell from a quick first skim, the ECtHR's judgement in Janowiec and Others v. Russia is one of those cases like Soering v. UK, where the Court reached the morally right result by cheating. In this case, the Court wanted to do something for the victims of the Katyn massacre, but were unable to do so because the Convention does not work retroactively. So they found a way of doing what would normally be done under the procedural prong of art. 2 ECHR by another means. Specifically, they applied art. 38:
The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.
Much to my surprise, Hudoc still has 500 or so cases that refer to this article, but I'd be highly surprised if any of them were even remotely as politically sensitive as this one.

As icing on the cake, some of the applicants also get a straight-up Soering: the way they were treated by the Russian government rose to the level of a violation of art. 3 ECHR, the ban on inhumane treatment. On that one, I'm afraid I'm going to have to agree with the joint partly dissenting opinion of judges Jungwiert and Kovler: that's just rubbish. (They put it more politely, but still.)

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