No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 23 September 2013
The undeniable impact of the European Convention on Human Rights on the legal systems – and the wider society – of Member States of the Council of Europe would not have been possible without its unique monitoring system, centred around the European Court of Human Rights and the Committee of Ministers of the Council of Europe. The present article assesses the extent to which the European Court's judgments that have found violations of the procedural obligations under Articles 2 and 3 of the Convention to investigate unlawful killings, disappearances, acts of torture or other ill-treatment have, in fact, led to an improvement in the capability of the domestic legal systems of states parties to ensure accountability for such abuses. On the basis of four case studies, it is concluded that the European Court's judgments, coupled with the supervisory powers of the Committee of Ministers, have the potential to make a very great impact on the capability of domestic legal systems to deal with gross violations of fundamental human rights, and have led to clear and positive changes within the domestic legal systems of respondent states. Nevertheless, this is by no means always the case, and it is suggested that, in order for the Convention system to achieve its full potential in the most politically charged cases, the European Court should adopt a more proactive approach to its remedial powers by ordering specific remedial measures, to include in particular the opening or reopening of investigations.
1 European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR or the Convention).
2 This article relies largely on the findings, updated in the light of subsequent events, of research carried out by the author in the context of the DOMAC project. For a more extensive discussion of the case studies presented in Section 4 below, see Silvia Borelli (with Sandra Lyngdorf), ‘The Impact of the Jurisprudence of the European Court of Human Rights on the Domestic Investigation of Serious Human Rights Violations by State Agents’, DOMAC, May 2010, DOMAC/7, http://www.domac.is/media/domac-skjol/DOMAC_7-ECHR-SB.pdf.
3 Throughout the article the shorthand ‘military operations’ will be used in a broad sense as including, unless otherwise specified, situations of armed conflict (whether international or non-international); belligerent occupation; domestic anti-terrorism operations carried out by the armed forces or other security forces; and multinational military operations carried out under the auspices of international organisations. The focus on military operations (broadly defined) is justified by the fact that, although large-scale and systematic human rights violations may, of course, occur outside the context of military activities, there are no decisions of the European Court relating to mass atrocities committed outside the context of ‘military operations’ as defined above.
4 As to the extraterritorial applicability of the ECHR where a state's forces act abroad, and the circumstances in which the armed forces of a state will be held to exercise ‘jurisdiction’ within the meaning of ECHR art 1, such that some or all of the substantive obligations apply, see Section 4.3 below.
5 The state's armed forces constitute organs of the state within the meaning of the rule reflected in the International Law Commission's (ILC) Articles on State Responsibility, art 4, and, on that basis, their actions and omissions are directly attributable to the state, even if they are contrary to instructions or in excess of authority: see ILC, Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001) UN Doc A/56/10 (2001), arts 4 and 7. For the application of the principle by the International Court of Justice (ICJ) see, eg, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Rep 168, [213]–[214], in particular the ICJ's observation that ‘[t]he conduct of individual soldiers and officers of the [Ugandan Peoples’ Defence Forces] is to be considered as the conduct of a State organ. In the Court's view, by virtue of the military status and function of Ugandan soldiers in the DRC, their conduct is attributable to Uganda’: ibid [213].
6 On alleged violations of ECHR arts 6 and 7 in the context of war crimes trials in Bosnia and Herzegovina, see Maktouf and Damjanovic v Bosnia and Herzegovina App Nos 2312/08 and 34179/08 (ECtHR [GC], 18 July 2013). For discussion of earlier domestic and ECHR practice, see Silvia Borelli, ‘The Impact of the European Convention on Human Rights in the Context of War Crimes Trials in Bosnia and Herzegovina’, DOMAC, November 2009, DOMAC/5, http://www.domac.is/reports. On alleged violations of art 7 arising from prosecutions for war crimes and/or crimes against humanity under subsequently passed laws, see Korbely v Hungary App No 9174/02 (ECtHR [GC], 19 September 2008); Kononov v Latvia App No 36376/04 (ECtHR [GC], 17 May 2010).
7 To the extent that the ECtHR has pronounced on ‘direct’ state responsibility for violation of arts 2 and 3 (ie substantive violations of the right to life and the prohibition of torture committed by state agents), that case law is of far more limited interest and relevance for domestic prosecutions precisely because it concerns the responsibility of the state for serious violation of the most fundamental human rights, and is therefore of little relevance to questions of individual criminal responsibility.
8 See, eg, Mikheyev v Russia App No 77617/01 (ECtHR, 26 January 2006), paras 107–10.
9 Makaratzis v Greece App No 50385/99 (ECtHR, 20 December 2004), para 57. See also Osman v United Kingdom App No 23452/94 (ECtHR [GC], 28 October 1998), para 115. In relation to art 3 see, eg, Giuliani and Gaggio v Italy App No 23458/02 (ECtHR [GC], 24 March 2011), para 209.
10 Öneryildiz v Turkey App No 48939/99 (ECtHR [GC], 30 November 2004), paras 95–96; see also Ali and Ayşe Duran v Turkey App No 42942/02 (ECtHR, 8 April 2008), para 61: ‘[w]hile there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences and grave attacks on physical and moral integrity to go unpunished’.
11 For discussion of the relevance of the procedural obligations of investigation under ECHR arts 2 and 3 in the context of international criminal procedure, see van der Wilt, Harmen and Lyngdorf, Sandra, ‘Procedural Obligations under the European Convention on Human Rights: Useful Guidelines for the Assessment of “Unwillingness” and “Inability” in the Context of the Complementarity Principle’ (2009) 9 International Criminal Law Review 39, 50–61CrossRefGoogle Scholar.
12 The scope of application of the obligation of investigation has been extended by the Court in subsequent cases to cover situations of enforced disappearance (see n 17) and situations where the victim did not die, but had been subjected to conduct which, by its very nature, had put his or her life at risk: see, eg, Makaratzis v Greece (n 9), in particular at paras 49–55.
13 See McCann and Others v United Kingdom App No 18984/91 (ECtHR, 27 September 1995), para 161.
14 Nachova and Others v Bulgaria App Nos 43577/98 and 43579/98 (ECtHR [GC], 6 July 2005), paras 110–13 (internal references omitted). See also, eg, Kaya v Turkey App No 22729/93 (ECtHR, 19 February 1998), para 86.
15 See McCann v United Kingdom (n 13) para 161. As to the position under art 3, see, eg, Assenov and Others v Bulgaria App No 24760/94 (ECtHR, 28 October 1998), para 102; Labita v Italy App No 26772/95 (ECtHR [GC], 6 April 2000), para 131.
16 See, eg, Ergi v Turkey App No 23818/94 (ECtHR, 28 July 1998), para 82; Cyprus v Turkey App No 25781/94 (ECtHR [GC], 10 May 2001), para 131.
17 Cyprus v Turkey, ibid para 132.
18 See, eg, Ramsahai and Others v The Netherlands App No 52391/99 (ECtHR [GC], 15 May 2007), para 324.
19 See, eg, Oğur v Turkey App No 21594/93 (ECtHR [GC], 20 May 1999), para 88.
20 See, eg, Mikheyev v Russia (n 8) para 110.
21 See, eg, Yaşa v Turkey App No 22495/93 (ECtHR, 2 September 1998), paras 102–04; Çakıcı v Turkey App No 23657/94 (ECtHR [GC], 8 July 1999), paras 80, 87 and 106; Tanrıkulu v Turkey App No 23763/94 (ECtHR [GC], 8 July 1999), para 109.
22 See, eg, Yaşa v Turkey, ibid para 100: ‘Nor is the issue of whether members of the deceased's family or others have lodged a formal complaint about the killing with the competent investigatory authorities decisive … the mere fact that the authorities were informed of the murder … gave rise ipso facto to an obligation under Article 2 to carry out an effective investigation’.
23 See, eg, Isayeva, Yusupova and Bazayeva v Russia App No 57947/00 (ECtHR, 24 February 2005), para 211; Mikheyev v Russia (n 8) para 107.
24 Kelly and Others v United Kingdom App No 30054/96 (ECtHR, 4 May 2001), para 96; see also Salman v Turkey App No 21986/93 (ECtHR, 27 June 2000), para 106; Tanrıkulu v Turkey (n 21) paras 104–09; Gül v Turkey App No 22676/93 (ECtHR, 14 December 2000), para 89; Mikheyev v Russia (n 8) para 108.
25 See, eg, the Northern Irish cases concerning the inability of inquests to compel members of the security forces directly involved in the use of lethal force to give evidence: McKerr and Others v United Kingdom App No 28883/95 (ECtHR, 4 May 2001), para 144; Jordan v United Kingdom App No 24746/94 (ECtHR, 4 May 2001), para 127.
26 See, eg, Kelly v United Kingdom (n 24) para 97. See also Yaşa v Turkey (n 21) paras 102–04.
27 See, eg, McKerr v United Kingdom (n 25) para 115; Jordan v United Kingdom (n 25) para 108.
28 McKerr v United Kingdom, ibid para 115; Jordan v United Kingdom, ibid para 109.
29 See, eg, Batı and Others v Turkey App Nos 33097/96 and 57834/00 (ECtHR, 3 June 2004), para 137.
30 Jordan v United Kingdom (n 25) paras 123–24.
31 For discussion of the question of applicability of the ECHR to extraterritorial military operations, see Section 4.3 below.
32 By contrast to other international instruments for the protection of human rights, the fact that the ECHR is fully applicable, subject to any permissible derogation, in times of armed conflict emerges clearly from the text of ECHR, art 15(1), which allows states to derogate from some Convention rights ‘[i]n time of war or other public emergency’.
33 Ergi v Turkey (n 16) para 82.
34 Al-Skeini v United Kingdom App No 55721/07 (ECtHR, 7 July 2011), para 164.
35 ibid para 168.
36 ibid.
37 ibid.
38 ibid para 169.
39 ibid para 169.
40 See, eg, Isayeva, Yusupova and Bazayeva v Russia (n 23), in which the ECtHR, having reiterated that ‘in order to maintain public confidence in adherence to the rule of law and to prevent any appearance of collusion or tolerance of unlawful acts, it is essential to carry out a prompt investigation’ (para 212), criticised the considerable delay on the part of the Russian authorities in opening an investigation into the killing by Russian armed forces of civilians who were trying to leave Grozny through a humanitarian corridor, as well as the serious and unexplained failures to act on the part of the investigating authorities once an investigation had been commenced (paras 214–25).
41 See, eg, ibid para 209.
42 See, again, ibid, in particular para 213. In response to the Russian government's argument that this aspect of the investigation had been undermined by the applicants’ failure to appear before the authorities or to leave a contact address, the Court took account of the circumstances of the applicants, including their mental state, and held that, in the circumstances, the feelings of insecurity and vulnerability of the applicants, who had been forced to flee from Grozny to escape from serious attacks on the city, outweighed their failure to communicate their addresses to the authorities (ibid para 224).
43 See Section 4.2 below.
44 The distinction between individual and general measures is well-established in the practice of the CoM and appears in a number of judgments of the ECtHR (see, eg, Rumpf v Germany App No 46344/06 (ECtHR, 2 September 2010), para 59). Individual measures are aimed at ensuring reparation for the violation identified by the Court in the specific case. Although this may also be one of the functions of general measures, the CoM has for some time recognised that an additional function of the adoption of general measures is to avoid the occurrence of similar violations in the future. For instance, it is significant that Rule 6(2)(b)(ii) of the Rules of the Committee of Ministers for the Supervision of the Execution of Judgments (adopted at the 964th meeting of the Ministers’ Deputies on 10 May 2006) places the preventative aspect of general measures first, providing that the CoM may request information from the relevant state both as to individual measures and as to whether ‘general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations’ (emphasis added). For a synthetic overview of the supervision of the execution of judgments by the CoM, see http://www.coe.int/t/dghl/monitoring/execution/Presentation/Pres_Exec_en.asp.
45 For an excellent overview of the relevant case law up to 2008, see Leach, Philip, ‘The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights’ (2008) 6 European Human Rights Law ReviewGoogle Scholar 732; see also the judgments discussed by Human Rights Watch in ‘Justice for Chechnya: The European Court of Human Rights Rules against Russia’, July 2007, http://www.hrw.org/sites/default/files/related_material/justice_for_chechnya_2.pdf.
46 See, eg, the discussion of the necessity and proportionality of the armed forces used by Russian troops in Isayeva, Yusupova and Bazayeva v Russia (n 23) paras 174–200. On the characterisation of the situation as an internal armed conflict and for commentary on the approach of the ECtHR, see Abresch, William, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) 16 European Journal of International LawCrossRefGoogle Scholar 741; see also Leach (n 45) 733–34.
47 For detailed discussion of the findings of the European Court in the Chechen cases, see the case study in Borelli (n 2) Annex, Ch 2; see further Leach (n 45), and the discussion by Human Rights Watch (n 45).
48 See, inter alia, Human Rights Watch, “Who Will Tell Me What Happened to My Son?”: Russia's Implementation of European Court of Human Rights Judgments on Chechnya’, 27 September 2009, 2, http://www.hrw.org/en/reports/2009/09/28/who-will-tell-me-what-happened-my-son, reporting that the relevant Russian authorities had ‘flatly contested several of the European Court's judgments apparently in order to justify closing investigations and refusing to bring charges against perpetrators. This has occurred even in cases in which those responsible or their superiors are known and named in European Court judgments, or could readily be known’. See also Human Rights Watch, ‘Russia: Making Justice Count in Chechnya’, November 2011, http://www.hrw.org/sites/default/files/related_material/2011_Russia_ECtHRImplementation.pdf; Human Rights Watch, ‘World Report 2011: Russia’, January 2011, particularly 3–4, http://www.hrw.org/en/world-report-2011/russia. It should be noted, however, that there are some isolated cases in which the reopening of investigations following the judgments of the European Court has resulted in the identification of particular service personnel and even the arrest of one of the alleged perpetrators in one case: see CoM, Interim Resolution CM/ResDH(2011)292, 2 December 2011, para 1.
49 See, eg, the Communication submitted by Russia to the CoM in February 2011: ‘Documents Distributed at the 1108th (DH) Meeting, 8–10 March 2011’, CoE Doc DH-DD(2011)130E, 25 February 2011.
50 See the Communication submitted by the Russian Justice Initiative (RJI) to the CoM in June 2011: ‘Documents Distributed at the 1115th (DH) Meeting, 7–8 June 2011’, CoE Doc DH-DD(2011)422E, 1 June 2011), para 18.
51 Abuyeva and Others v Russia App No 27065/05 (ECtHR, 2 December 2010).
52 Isayeva v Russia App No 57950/00 (ECtHR, 24 February 2005).
53 Abuyeva v Russia (n 51) paras 196–203.
54 ibid paras 204–07.
55 ibid paras 207–08.
56 ibid para 241.
57 ibid para 243.
58 See CoM, Interim Resolution CM/ResDH(2011)292, 2 December 2011, para 1; cf Abuyeva v Russia (n 51) para 242. In September 2012, the CoM noted that a new third investigation had been carried out by the Russian authorities following the Abuyeva judgment and that the decision to close this investigation had recently been quashed with the case sent back for additional investigations: CM/Del/Dec(2012)1150/19, 26 September 2012, para 10. The CoM called upon the Russian authorities to ensure that this additional investigation will eventually address all the shortcomings repeatedly identified by the European Court and invited them to provide detailed information to enable the CoM to ascertain that this investigation has effectively paid due regard to all of the Court's conclusions (ibid para 11).
59 Department for the Execution of Judgments, ‘Action of the Security Forces in the Chechen Republic of the Russian Federation: General Measures to Comply with the Judgments of the European Court of Human Rights’, CoE Doc CM/Inf/DH(2008)33, 11 September 2008, paras 77–80.
60 Department for the Execution of Judgments, ‘Violations of the ECHR in the Chechen Republic: Russia's Compliance with the European Court's judgments’, CoE Doc CM/Inf/DH(2006)32 rev 2, 12 June 2007, para 74.
61 Department for the Execution of Judgments, ‘Action of the Security Forces in the Chechen Republic of the Russian Federation: General Measures to Comply with the Judgments of the European Court of Human Rights’, CoE Doc CM/Inf/DH(2010)26, 27 May 2010, paras 7–19; cf ibid paras 20–26 for the assessment of the Department for the Execution of Judgments. On the HET, as well as the Iraqi Historic Allegations Team (IHAT) created more recently by the UK in order to examine allegations of violations in Iraq, see Section 4.3 below.
62 See CoM, Decision CM/Inf/DH(2009)32, 5 June 2009, paras 1–3, quote from para 3.
63 ibid para 3.
64 See RJI Communication (n 50) paras 12–14.
65 ibid para 15; see also Human Rights Watch, ‘Joint Letter to President Medvedev regarding Human Rights Situation in the North Caucasus’, 20 April 2011, http://www.hrw.org/en/news/2011/04/20/russia-joint-letter-president-medvedev-regarding-human-rights-situation-north-caucas.
66 See, eg, Zubayrayev v Russia App No 67797/01 (ECtHR, 10 January 2008), para 100; Lyanova and Aliyeva v Russia App Nos 12713/02 and 28440/03 (ECtHR, 2 October 2008), para 107; Imakayeva v Russia App No 7615/02 (ECtHR, 9 November 2006), para 84; Bazorkina v Russia App No 69481/01 (ECtHR, 27 July 2006), paras 84, 165; Akhiyadova v Russia App No 32059/02 (ECtHR, 3 July 2008), para 78; Sangariyeva and Others v Russia App No 1839/04 (ECtHR, 29 May 2008), para 82.
67 Art 125 CCP was in fact already in force when the investigations at issue in some of the European Court's judgments were closed, but the domestic courts nevertheless rejected applications by relatives of the victims, principally because they had not been granted victim status in the proceedings. According to the Russian government, this obstacle has now been removed with the adoption, on 10 February 2009, of a ruling in which the Supreme Court of the Russian Federation laid down guidelines on the application of art 125, noting, inter alia, that the exercise of the remedy was not contingent upon the formal procedural status of the party in criminal proceedings: see Department for the Execution of Judgments, 27 May 2010 (n 61) paras 58–59). In 2010, following the Supreme Court judgment mentioned above, the Department for the Execution of Judgments of the CoM suggested that, although art 125 CCP was not designed for ‘a situation of general breakdown of all public institutions or to combat general unwillingness or incapacity of the authorities to carry out the investigations’ (ibid para 66), it was possible that the attitude of the authorities had changed so that art 125 could now constitute an effective remedy, and requested the Russian government to provide further information as to its application in the Chechen cases (ibid paras 64–75).
68 See, eg, Nasipova and Khamzatova v Russia App No 32382/05 (ECtHR, 2 September 2010), in which the European Court appears to have accepted that the procedure under CCP art 125 constitutes a remedy which, in principle, should be exhausted and that it would be for the applicants to demonstrate that in the circumstances the remedy would have been ineffective. For critical commentary, see Gavron, Jessica, ‘The Exhaustion of Domestic Remedies in Russia: The ECtHR's Approach to Art. 125 of the Code of Criminal Procedure’, EHRAC Bulletin, 2011Google Scholar, issue 16, 5, http://ehracmos.memo.ru/files/Bulletin16Eng.pdf.
69 See ‘Submission from NGOs Russian Justice Initiative and the Centre of Assistance to International Protection to the Committee of Ministers of the Council of Europe concerning the Functioning of the Russian Code of Criminal Procedure in Implementation of Judgments from the Khashiyev and Akayeva Group’, 18 April 2013, http://www.srji.org/files/Implementation/18%20April%202013%20SUB%20COM.pdf.
70 See CoE Doc DH-DD(2011)977E, 17 November 2011.
71 ibid paras 31–34.
72 Parliamentary Assembly of the Council of Europe, Committee on the Honouring of Obligations and Commitments by Member States, ‘The Honouring of Obligations and Commitments by the Russian Federation – Explanatory Memorandum by Mr Frunda and Mr Gross, Co-rapporteurs, Doc 13018, 14 September 2012, para 407, http://assembly.coe.int/ASP/XRef/X2H-DW-XSL.asp?fileid=18998&lang=EN.
73 Although violent disturbances between the security forces and the PKK had been ongoing in south-east Turkey since the early 1980s, they intensified substantially in the 1990s, when military counter-insurgency operations and guerrilla warfare by PKK members, coupled with the reaction of the Turkish government, resulted in widespread loss of civilian lives, disappearances and abuses in the region. Following the arrest in 1999 of the PKK leader, Abdullah Öcalan, the human rights situation in south-east Turkey saw a progressive improvement; the legacy of the abuses committed in the 1990s, however, still remains. According to official estimates, by 2008 the armed struggle between the military and the PKK had resulted in an estimated 44,000 deaths of military personnel, PKK members, and civilians: see Human Rights Watch, ‘Time for Justice: Ending Impunity for Killings and Disappearances in 1990s Turkey’, September 2012, http://www.hrw.org/sites/default/files/reports/turkey0912ForUpload.pdf. On the conflict, see Somer, Murat, ‘Turkey's Kurdish Conflict: Changing Context, and Domestic and Regional Implications’ (2004) 58 Middle East JournalCrossRefGoogle Scholar 235.
74 For discussion of the range of violations identified by the ECtHR, see Interim Resolution CM/ResDH(2008)69, ‘Actions of the Security Forces in Turkey: Progress Achieved and Outstanding Issues’, adopted by the CoM at the 1035th meeting on 18 September 2008.
75 See, eg, Çakıcı v Turkey (n 21); Ertak v Turkey App No 20764/92 (ECtHR, 9 May 2000); Timurtaş v Turkey App No 23531/94 (ECtHR, 13 June 2000); and Taş v Turkey App No 24396/94 (ECtHR, 14 November 2000).
76 For instance, the Court criticised (i) the failure of the prosecution to take statements from key witnesses (see, eg, Şemsi Önen v Turkey App No 22876/93 (ECtHR, 14 May 2002), para 88); (ii) the inadequate questioning of police officers, members of the security forces and other officials (see, eg, Aktaş v Turkey App No 24351/94 (ECtHR, 24 April 2003), para 306); (iii) the lack of adequate inspection of the crime scene (see, eg, Yasin Ateş v Turkey App No 30949/96 (ECtHR, 31 May 2005), para 96); and (iv) the fact that autopsies had been carried out improperly (see, eg, Salman v Turkey (n 24) para 106).
77 Despite the fact that under Turkish law prosecutors are under a duty to investigate allegations of serious offences which come to their attention, at the time of the events discussed in the judgments relating to the PKK conflict, it was for the relevant local administrative council (for the district or for the province, depending on the suspect's status) to conduct the preliminary investigation and decide whether to prosecute if the suspect was a civil servant and the offence was committed in the performance of his/her duties; the relevant legal/administrative framework is described, eg, in Yaşa v Turkey (n 21) para 49. The ECtHR found that procedure to be incompatible with the obligation of effective investigation in over fifty cases, in which it held that the preliminary investigations carried out by the administrative councils for the purpose of granting authorisation could not be seen to be independent since they were chaired by the governors, or their deputies, and made up of local representatives of the executive, who were hierarchically dependent on the governors. See, eg, Güleç v Turkey App No 21593/93 (ECtHR, 27 July 1998), para 80; Oğur v Turkey (n 19), para 91; Yöyler v Turkey App No 26973/95 (ECtHR, 24 July 2003), para 93; Kurnaz and Others v Turkey App No 36672/97 (ECtHR, 24 July 2007), para 62.
79 With a view to fulfilling the criteria for eventual EU membership, the Justice and Development Party (Adalet ve Kalkınma Parti or AKP) government, which assumed power in 2002, instituted an ambitious programme of legal reforms. These reforms were introduced mainly in the form of large mixed reform packages, known as ‘EU Harmonisation Packages’, and involved changes to a variety of laws in different areas. On the EU accession process and its impact on the domestic protection of human rights in Turkey see, eg, Ulusoy, Kivanç, ‘Turkey's Reform Efforts Reconsidered’ (2007) 14 DemocratizationGoogle Scholar 472; Casier, Marlies, ‘Contesting the “Truth” of Turkey's Human Rights Situation: State-Association Interactions in and outside the Southeast’ (2009) 10 European Journal of Turkish StudiesGoogle Scholar, http://ejts.revues.org/4190?&id=4190.
80 Criminal Procedure Code (Ceza Muhakemesi Kanunu), Law No 5271, 4 December 2004, entered into force 1 June 2005 (unofficial English translation of selected articles available at http://legislationline.org/documents/action/popup/id/8976).
81 See Interim Resolution CM/ResDH(2005)43, adopted by the CoM on 7 June 2005 at the 928th Meeting of the Ministers’ Deputies, Appendix 1, para 19; Interim Resolution CM/ResDH(2008)69 (n 74) Appendix I, para C(4). For access (in Turkish only) to all the circulars issued by the Ministry of Justice since 1 January 2006, see http://www.adalet.govtr/duyurular/genelgeler/genelgeler.html.
82 See Interim Resolution CM/ResDH(2008)69 (n 74) Appendix I, para C(4). In particular, the circular alluded to problems relating to discrepancies in autopsy reports, the absence of photographic records of autopsies and the fact that decisions not to prosecute were being issued by public prosecutors without the necessary investigation as to the facts having been carried out. They also added that all necessary evidence should be collected from the scene of the crime and should be carefully retained, and that the rules on ballistic examinations, autopsy reports and identification of bodies should be followed strictly. With regard to the promptness and expedition of the investigation, the circulars specified that the investigations were to be carried out directly by public prosecutors, who should examine the investigation files at regular intervals and do their utmost to ensure that the perpetrators were found quickly and, in any case, within the limitation period.
83 See Interim Resolution CM/ResDH(2008)69 (n 74) Appendix I, para C(4); see also Department for the Execution of Judgments, ‘Actions of Security Forces in Turkey: Progress Achieved and Outstanding Issues’, CoE Doc CM/Inf/DH(2006)24 rev 2, 10 October 2007.
84 See Interim Resolution DH(99)434, adopted by the CoM on 9 June 1999 at the 672nd meeting of the Ministers’ Deputies. This call was repeated in Interim Resolution CM/ResDH(2002)98, adopted by the CoM on 10 July 2002 at the 803rd meeting of the Ministers’ Deputies.
85 See the information provided by Turkey, summarised in Interim Resolution CM/ResDH(2005)43 (n 81), Appendix I, para 20.
86 ibid.
87 ibid para 21.
88 Interim Resolution CM/ResDH(2008)69 (n 74) para E.
89 ibid.
90 ibid.
91 See, eg, Human Rights Watch (n 73).
92 The problems in this regard are best illustrated by monitoring carried out by NGOs. See, eg, Human Rights Watch, ‘Closing Ranks against Accountability: Barriers to Tackling Police Violence in Turkey’, 5 December 2008, http://www.hrw.org/en/reports/2008/12/05/closing-ranks-against-accountability-0. Although the cases analysed by Human Rights Watch do not concern abuses perpetrated by members of the security forces in south-east Turkey, given the general applicability of the circulars invoked by the Turkish government in its dialogue with the CoM, they may be regarded as constituting a fairly reliable indicator of the impact in practice of the circulars. Similar concerns are reflected in the comments by the Committee against Torture on the latest Turkish periodic report to the Committee: see ‘Concluding Observations of the Committee against Torture: Turkey’, 19 November 2010, CAT/C/TUR/CO/3, in particular 3–5. See also European Commission against Racism and Intolerance (ECRI), ‘Fourth Report on Turkey’, CoE Doc CRI(2011)5, 8 November 2011, paras 162–68.
93 In addition to Al-Skeini v United Kingdom (n 34) and Al-Jedda v United Kingdom (n 107) discussed below, other cases have concerned the transfer of detainees to the Iraqi authorities in situations where they risked being subjected to capital punishment (Al-Saadoon and Mufdhi v United Kingdom App No 61498/08 (ECtHR, 3 June 2009; 2 March 2010). On the invasion and the subsequent occupation of Iraq by the Coalition Forces and subsequent developments, see Al-Skeini v United Kingdom (n 34) paras 9–24.
94 Banković and Others v Belgium and 16 Other NATO Countries App No 52207/99 (ECtHR, Decision, 12 December 2001). For commentary on the case, see n 97.
95 The literature on the question of the extraterritorial application of the Convention and other human rights treaties is far too vast to broach here; in addition to the sources cited at n 97 see, eg, Dennis, Michael J., ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 American Journal of International LawCrossRefGoogle Scholar 119; Gondek, Michal, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?’ (2005) 52 Netherlands International Law ReviewCrossRefGoogle Scholar 349; Miltner, Barbara, ‘Revisiting Extraterritoriality after Al-Skeini: The ECHR and its Lessons’ (2012) 33 Michigan Journal of International LawGoogle Scholar 693; see also the contributions in Coomans, Fons and Kamminga, Menno (eds), Extraterritorial Application of Human Rights Treaties (Intersentia 2004).Google Scholar
96 Al-Skeini v United Kingdom (n 34). The case was brought by the relatives of six Iraqi civilians killed by British troops during the occupation of Iraq; one of the victims, Baha Mousa, had died in a UK detention facility in Iraq; the other five victims had been killed by British troops on patrol in Basra. In 2007, the majority of the House of Lords had held that Mr Mousa was within the UK's art 1 jurisdiction, but that the five individuals killed outside the UK detention facilities had not been within UK jurisdiction and therefore the ECHR did not apply to their cases: see Al-Skeini v Secretary of State for Defence [2007] UKHL 26.
97 On the infamous notion of espace juridique elaborated by the ECtHR in Banković see, inter alia, Wilde, Ralph, ‘The “Legal Space” or “Espace Juridique” of the European Convention on Human Rights: Is it Relevant to Extraterritorial State Action?’ (2005) 10 European Human Rights Law ReviewGoogle Scholar 116; Happold, Matthew, ‘Banković v Belgium and the Territorial Scope of the European Convention on Human Rights’ (2003) 3 European Human Rights Law ReviewGoogle Scholar 77; Richard Lawson, ‘Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights’ in Coomans and Kamminga (eds) (n 95) 131; Leach, Philip, ‘The British Military in Iraq: The Applicability of the Espace Juridique Doctrine under the European Convention on Human Rights’ (2005) Public LawGoogle Scholar 448.
98 Loizidou v Turkey App No 15318/89 (ECtHR, 23 February 1995; 28 November 1996).
99 Al-Skeini v United Kingdom (n 34) para 136.
100 ibid.
101 ibid para 137.
102 See Banković (n 94) para 75.
103 Al-Skeini v United Kingdom (n 34) para 149. The formulation used by the ECtHR, and particularly the reference to the ‘exceptional circumstances’ of the UK presence and mandate in southern Iraq in the relevant period have led some commentators to suggest that the Court in Al-Skeini has in fact developed an intermediary model for jurisdiction, incorporating elements of both the spatial test and the personal test (ie that the victims were deemed to have been within UK jurisdiction on the basis that UK troops exercised personal control over them in the wider context of also exercising some public powers in Iraq). See, in this sense, Milanović, Marko, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23 European Journal of International LawCrossRefGoogle Scholar 121.
104 Behrami and Behrami v France and Saramati v France, Germany and Norway App Nos 71412/01 and 78166/01 (ECtHR, 2 May 2007). The two cases concerned the actions of the Kosovo Force (KFOR), the multinational peacekeeping force established by Security Council Resolution 1244(1999) and of the United Nations Interim Administration Mission in Kosovo (UNMIK). In Behrami and Behrami v France, it was claimed that the failure by French KFOR troops operating in the municipality of Mitrovica to mark and/or defuse an undetonated cluster bomb, which had then caused the death of one of the applicant's children and had seriously injured the other, had amounted to a breach of ECHR art 2. In Saramati v France, Germany and Norway, the applicant claimed that his arrest and detention by KFOR had breached his rights under ECHR arts 5 and 6. For eloquent criticism of the European Court's decision, see Milanović, Marko and Papić, Tatjana, ‘As Bad as it Gets: The European Court of Human Rights's Behrami and Saramati Decision and General International Law’ (2009) 58 International and Comparative Law QuarterlyCrossRefGoogle Scholar 267. For commentary, see also Larsen, Kjetil Mujezinović, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test’ (2008) 19 European Journal of International LawCrossRefGoogle Scholar 509.
105 Behrami v France (n 104) paras 132–41 (on the attribution of KFOR actions) and paras 142–43 (on UNMIK).
106 ibid paras 144–52.
107 Al-Jedda v United Kingdom App No 27021/08 (ECtHR, 7 July 2011).
108 ibid para 80. On the possibility of multiple attribution, see ILC, Draft Articles on the Responsibility of International Organizations and Commentaries, 8 August 2011, UN Doc A/66/10, para 88; Introductory Commentary to Pt One, Ch II, para (4): ‘Although it may not frequently occur in practice, dual or even multiple attribution of conduct cannot be excluded. Thus, attribution of a certain conduct to an international organization does not imply that the same conduct cannot be attributed to a State; nor does attribution of conduct to a State rule out attribution of the same conduct to an international organization’.
109 See DARIO, ibid art 7.
110 Al-Jedda v United Kingdom (n 107) para 84.
111 ibid.
112 Al-Skeini v United Kingdom (n 34) para 153.
113 The sixth applicant, the father of Baha Mousa, had accepted, in the light of the public inquiry into the circumstances of Mr Mousa's death set up by the UK government in 2008 – which, by that stage, was nearing completion – that he was no longer a victim of any breach of the procedural obligation under ECHR art 2: ibid para 176. For the report of the Baha Mousa inquiry see ‘The Baha Mousa Public Inquiry Report (Chairman: Sir William Gage)’ (3 vols), The Stationery Office, HC 1452-I/III, 8 September 2011, http://www.bahamousainquiry.org/report/index.htm.
114 Al-Skeini v United Kingdom (n 34) para 153. In particular, the UK government had argued that the investigation had been carried out by the Special Investigation Branch of the Royal Military Police, who were institutionally independent of the armed forces, and that the role of the military chain of command in notifying the Royal Military Police of an incident requiring an investigation did not mean that the investigations lacked independence.
115 ibid para 164.
116 ibid.
117 ibid.
118 ibid para 171.
119 ibid para 172.
120 ibid para 174.
121 For discussion of the original mandate, composition and status of the two bodies, see R (Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334, paras 19–39. The IHAT appears to be modelled largely upon the Historical Enquiries Team (HET) set up in 2005 in order to give effect to the findings of the ECtHR in cases relating to the ineffective investigation of killings in Northern Ireland during the Troubles (1968–98). Although the CoM appeared to accept that the setting up and activities of the HET constituted an appropriate method to give effect to the ECtHR's judgments, and closed its examination of the cases in 2009, a recent report by the British body charged with oversight of UK policing identifies a number of very serious shortcomings in relation to the way in which the HET has investigated killings that implicated state involvement. See Her Majesty's Inspectorate of Constabularies, ‘Inspection of the Police Service of Northern Ireland Historical Enquiries Team’, 3 July 2013, www.hmic.gov.uk. For discussion of the Historical Enquiries Team and other measures adopted by the UK in response to the Court's judgments relating to the Troubles in Northern Ireland, see the case study in Borelli (n 2) Annex, Ch 5.
122 R (Mousa) v Secretary of State for Defence [2010] EWHC 3304 (Admin) paras 1–3.
123 R (Mousa) v Secretary of State for Defence (n 121) paras 34–38.
124 R (Mousa) v Secretary of State for Defence [2013] EWHC 1412 (Admin).
125 ibid paras 108–25.
126 ibid paras 2–6 and 130.
127 ibid paras 178–97. The Divisional Court found that IHAT inquiries fell short of the requirements of art 2 as, inter alia, the IHAT was not structured in a way which allowed it to take prompt and effective decisions as to the prosecution of individuals allegedly responsible for the killing of Iraqi civilians; the inquiry was not accessible to the public, nor to the family of the victim; nor was it able to examine systemic abuses and the type of training and instructions received by UK soldiers.
128 ibid para 6.
129 ibid paras 198–211.
130 ibid paras 213–31.
131 As to alleged enforced disappearances committed by the Greek-Cypriot side see, eg, Baybora and Others v Cyprus App No 77116/01 (ECtHR, 22 October 2002); Karabardak and Others v Cyprus App No 76575/01 (ECtHR, 22 October 2002).
132 Cyprus v Turkey (n 16) para 136; the ECtHR had held earlier that it was unable to find a substantive violation of art 2, because it fell outside the scope of the application ratione temporis and because of the inconclusive nature of the available evidence: ibid para 130.
133 Varnava and Others v Turkey App Nos 16064 and others (ECtHR [GC], 18 September 2009). The Grand Chamber noted that despite the passage of time, it could not be said that ‘there is nothing further that could be done’ and that, although ‘[i]t may be that investigations would prove inconclusive, or insufficient evidence would be available …, that outcome is not inevitable even at this late stage and the respondent Government cannot be absolved from making the requisite efforts’ (ibid para 192); in that regard, the Grand Chamber invoked the example of the creation by the UK of the HET and the Serious Crimes Review Team in Northern Ireland, which had been found ‘given the time that had elapsed, to have been adequate in the particular circumstances’ (ibid).
134 Varnava v Turkey, ibid para 193. On the composition and mandate of the UN Committee on Missing Persons (CMP), see ibid para 85.
135 ibid para 165.
136 ibid para 166.
137 ibid para 170.
138 ibid para 189.
139 ibid para 222.
140 ibid para 223.
141 See Charalambous and Others v Turkey App No 46744/07 (ECtHR, Decision, 1 June 2010).
142 Charalambous and Others v Turkey App No 46744/07 (ECtHR, Decision, 3 April 2012), para 55.
143 ibid para 56.
144 ibid para 57.
145 ibid para 58. The ECtHR clarified that, even if the mechanism of individual petition by the next-of-kin of victims of past abuses logically only became applicable at the point at which the bodies were identified, this did not mean that the investigative obligation arising from the discovery become operational only at that point, observing that ‘[i]t cannot be the case that on discovery of mass graves of victims of violence the authorities could remain inactive and claim that no Article 2 obligations arose as the identities of the victims were unknown. That would be a bizarre result’ (ibid para 59).
146 ibid para 60.
147 ibid para 65.
148 ibid para 66.
149 See, eg, the 1092nd meeting, at which the CoM decided merely to ‘resume consideration of the item at one of its forthcoming meetings’: ‘Decisions Adopted at the 1092nd (DH) Meeting, 14–15 September 2010’, CoE Doc CM/Del/Dec(2010)1092; see also the earlier CoM, ‘Decisions Adopted at the 1086th (DH) Meeting’, 1–3 June 2010, CoE Doc CM/Del/Dec(2010)1086/1.
150 See ‘Decisions Adopted at the 1164th (DH) Meeting, 5–7 March 2013’, CoE Doc CM/Del/Dec(2013)1164’, Case No 29, paras 5–11.
151 Charalambous (n 142) para 65.
152 The refusal by respondent states to adopt any individual measures other than payment of compensation may be compounded by the approach to supervision of execution adopted by the CoM itself. For instance, in relation to cases in the ‘Aksoy group’ – which groups together over 250 judgments and amicable settlements relating to violations by the Turkish security forces in south-east Turkey – in the supervision of the execution of judgments, the relevant Convention organs have largely prioritised the adoption of general measures aimed at improving the quality of investigations, arguably at the expense of individual measures, particularly the possible resumption of criminal investigations. see, eg, the comment by the Department for Execution of Judgments in relation to the measures adopted by Turkey that, in view of the need for general measures to improve investigations, the issue of individual measures has been ‘largely integrated into that of general measures’. See https://wcd.coe.int/ViewDoc.jsp?id=1511985&Site=COE, under ‘Aksoy’.
153 See, eg, Helfer, Laurence, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 European Journal of International LawCrossRefGoogle Scholar 125, who identifies various aspects of the ‘embeddedness’ of the Convention as factors which co-opt domestic courts with the aim of ensuring greater compliance with the Convention.
154 See, eg, Wildhaber, Luzius, ‘A Constitutional Future for the European Court of Human Rights?’ (2002) 23 Human Rights Law JournalGoogle Scholar 161; Wildhaber, Luzius, ‘The Role of the European Court of Human Rights: An Evaluation’ (2004) 8 Mediterranean Journal of Human RightsGoogle Scholar 9; Harmsen, Robert, ‘The European Court of Human Rights as a “Constitutional Court”: Definitional Debates and the Dynamics of Reform’, in Morison, John, McEvoy, Kieran and Anthony, Gordon (eds), Judges, Transition and Human Rights Cultures (Oxford University Press 2007)Google Scholar 33; Greer, Stephen, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press 2006) 169–74.CrossRefGoogle Scholar
155 See, eg, the comments by the CoM on the Chechen cases reported above, text to n 58.
156 For a fascinating account of the attitude of the Russian courts and public authorities, see Trochev, Alexei, ‘All Appeals Lead to Strasbourg? Unpacking the Impact of the European Court of Human Rights on Russia’ (2009) 17 Demokratizatsiva: The Journal of Post-Soviet DemocratizationGoogle Scholar 145.
157 In its Recommendation 1456, ‘Conflict in the Chechen Republic: Implementation by the Russian Federation of Recommendation 1444 (2000)’, adopted on 6 April 2000, the Parliamentary Assembly expressed the view that ‘substantial grounds for concern exist … that the European Convention on Human Rights is being violated by the Russian authorities in the Chechen Republic both gravely and in a systematic manner’; as a consequence, it appealed to ‘to make use of Article 33 as a matter of urgency and to refer to the European Court of Human Rights alleged breaches by the Russian Federation of the provisions of the Convention and its Protocols’ (ibid para 18).
158 Protocol No 14 to the European Convention on Human Rights, amending the control system of the Convention (entered into force 1 June 2010) CETS No 194. For commentary on the modifications introduced by the Protocol, see Greer, Stephen, ‘Protocol 14 and the Future of the European Court of Human Rights’ (2005) Public LawGoogle Scholar 83.
159 See Statute of the Council of Europe, art 8 (entered into force 3 August 1949) CETS No 001. The CoM implicitly threatened Turkey with exclusion as the result of its non-payment of the sums awarded by way of compensation in Loizidou v Turkey: see CoM, Interim Resolution ResDH(2003)174 adopted at the 860th Meeting of the Ministers’ Deputies on 12 November 2003, in which the Committee urged Turkey to pay the compensation ordered by the ECtHR within one week and declared its ‘resolve to take all adequate measures against Turkey if Turkey fails once more to pay the just satisfaction awarded by the Court to the applicant’. Turkey subsequently paid the sums due on 2 December 2003: see Resolution ResDH(2003)190, adopted at the 862nd Meeting of the Ministers’ Deputies on 2 December 2003. In Recommendation 1456 (n 157) the Parliamentary Assembly also recommended to the CoM that should ‘substantial, accelerating and demonstrable progress not be made immediately’ as regards the human rights situation in Chechnya, the CoM should ‘initiate without delay, in accordance with Article 8 of the Statute, the procedure for the suspension of the Russian Federation from its rights of representation in the Council of Europe’ (ibid para 24(ii)).
160 See, eg, Explanatory Report, Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, CETS No 194, para 100, http://conventions.coe.int/Treaty/EN/Reports/Html/194.htm. See, in the same sense, Greer (n 154) 155–56, noting that ‘[t]here is very little the Council of Europe can do with a state persistently in violation, short of suspending its voting rights on the Committee of Ministers or expelling it from the Council altogether, each of which is likely in all but the most extreme circumstances to prove counterproductive’; see also Leach, Philip, ‘The Effectiveness of the Committee of Ministers in Supervising the Enforcement of Judgments of the European Court of Human Rights’ (2005) Public LawGoogle Scholar 443.
161 In Ireland v United Kingdom App No 5310/71 (ECtHR, 18 January 1978) although expressly declining to decide the more general question of ‘whether its functions extend, in certain circumstances, to addressing consequential orders to Contracting States’, the ECtHR held, in response to the specific request for relief formulated by Ireland, that ‘the sanctions available to it do not include the power to direct one of those States to institute criminal or disciplinary proceedings in accordance with its domestic law’ (ibid para 187). As to the non-permissibility of the granting of specific declaratory relief, see Tolstoy Miloslavsky v United Kingdom App No 18139/91 (ECtHR, 13 July 1995), paras 69–72; Akdivar and Others v Turkey (Article 50) App No 21893/93 (ECtHR [GC], 1 April 1998), para 47.
162 See Scozzari and Giunta v Italy App Nos 39221/98 and 41963/98, (ECtHR [GC], 13 July 2000), para 249.
163 See Papamichalopoulos and Others v Greece (Article 50) App No 14556/89 (ECtHR, 31 October 1995), paras 34–39, and para 2 of the dispositif; cf Guiso-Gallisay v Italy (Just Satisfaction) App No 58858/00 (ECtHR [GC], 22 December 2009), paras 90–96.
164 See, eg, Assanidze v Georgia App No 71503/01 (ECtHR [GC], 8 April 2004), paras 202–03 and para 14(a) of the dispositif; and Ilaşcu and Others v Moldova and Russia App No 48787/99 (ECtHR [GC], 8 July 2004), para 490 and para 22 of the dispositif.
165 Lukenda v Slovenia App No 23032/02 (ECtHR, 6 October 2005), para 5 of the dispositif; see also paras 97–98; cf the Partly Dissenting Opinion of Judge Zagrebelsky. See similarly Burdov v Russia (No 2) App No 33509/04 (ECtHR [GC], 15 January 2009), para 6 of the dispositif (requiring the provision of ‘an effective domestic remedy or combination of such remedies which secures adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments’); see also ibid paras 136–41.
166 Sejdovic v Italy App No 56581/00 (ECtHR [GC], 1 March 2006), para 126; cf the Chamber judgment of 10 November 2004, para 55. See also, in this regard, CoM, Recommendation No R (2000) 2 on ‘Re-examination or Reopening of Certain Cases at Domestic Level Following Judgments of the European Court of Human Rights’, adopted at the 694th meeting of the Ministers’ Deputies on 19 January 2000.
167 Such recommendations were made, eg, in Broniowski v Poland App No 31443/96 (ECtHR [GC], 22 June 2004) (provision of a system of compensation). For the impetus for the pilot judgment procedure, see CoM, Resolution CM/ResDH(2004)3 on Judgments Revealing an Underlying Systemic Problem, adopted at the 114th Session on 12 May 2004. For general discussion of the developments in the ECtHR approach to the ordering of specific measures, see Colandrea, Valerio, ‘On the Power of the European Court of Human Rights to Order Specific Non-monetary Measures: Some Remarks in Light of the Assanidze, Broniowski and Sejdovic Cases’ (2007) 7 Human Rights Law ReviewCrossRefGoogle Scholar 396. For general discussion, see Leach, Philip, ‘Beyond the Bug River: A New Dawn for Redress before the European Court of Human Rights’ (2005) European Human Rights Law ReviewGoogle Scholar, 147; Leach, Philip and others, Responding to Systemic Human Rights Violations. An Analysis of Pilot Judgments of the European Court of Human Rights and Their Impact at National Level (Intersentia 2010)Google Scholar; Leach, Philip, Hardman, Helen and Stephenson, Svetlana, ‘Can the European Court's Pilot Judgment Procedure Help Resolve Systemic Human Rights Violations? Burdov and the Failure to Implement Domestic Court Decisions in Russia’ (2010) 10 Human Rights Law ReviewCrossRefGoogle Scholar 346.
168 See, eg, Kukayev v Russia App No 29361/02 (ECtHR, 15 November 2007), paras 131–34; Musayeva v Russia App No 12703/02 (ECtHR, 3 July 2008), paras 164–66; Mezhidov v Russia App No 67326/01 (ECtHR, 25 September 2008), paras 96–99; Lyanova and Aliyeva v Russia (n 66) paras 159–60.
169 See Kukayev v Russia, ibid para 134; Musayeva v Russia, ibid para 166; Mezhidov v Russia ibid para 99; Lyanova and Aliyeva v Russia (n 66) para 160.
170 Varnava v Turkey (n 133) para 222.
171 See, eg, Ilaşcu v Moldova and Russia (n 164) para 22 of the dispositif: ‘the respondent States are to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release’.
172 Varnava v Turkey (n 133) Concurring Opinion of Judge Spielmann, joined by Judges Ziemele and Kalaydjieva, para 5.
173 Abuyeva v Russia (n 51) para 243.
174 ibid paras 238–42. See, in particular, para 241, quoted above, text to n 56.
175 See Antonio Cassese, ‘Strengthening the Role of the European Court of Human Rights’, speech before the Parliamentary Assembly of the CoE, 24 June 2009, http://coenews.coe.int/vod/090624_w01_e.wmv. A valuable illustration of the possibility (and the merit) of a different approach is provided by the Inter-American Court of Human Rights. In contrast to the deferential approach of the European Court, the Inter-American Court has had little hesitation in making full use of its remedial powers, in particular by ordering states to adopt remedial measures in conjunction with the payment of compensation. In that regard, the Inter-American Court, from a very early stage in its long history of dealing with cases involving mass atrocities, has expressly ordered states to conduct investigations into the abuses identified and to prosecute and punish those responsible in an appropriate manner. See, inter alia, Loayza Tamayo v Peru (1998) Inter-Am Ct HR (Ser C) No 42, para 192(6); Barrios Altos v Peru (2001) Inter-Am Ct HR (Ser C) No 75, para 51(5). cf the earlier case of Velásquez-Rodriguez v Honduras (1988) Inter-Am Ct HR (Ser C) No 4, in which the Inter-American Court, while emphasising the need for criminal punishment of those responsible for the abuses identified in the case, did not expressly order the domestic authorities to conduct an investigation and prosecution. For discussion, see Antkowiak, Thomas W, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’ (2008) 46 Columbia Journal of Transnational LawGoogle Scholar 351.