International Human Rights Law: Analysis of ECHR Violations and Cases

This report provides a comprehensive analysis of a case involving violations of the European Convention on Human Rights (ECHR). It examines several key articles, including Article 5 (right to liberty and security), Article 6 (right to a fair trial), Article 3 (prohibition of inhuman or degrading treatment), and Article 8 (right to respect for private and family life). The report analyzes the arrest and detention of an applicant under counter-terrorism laws, the denial of a fair trial, the risk of ill-treatment during deportation, and the violation of the right to private and family life. It references relevant case law from the European Court of Human Rights (ECtHR), such as Fox, Campbell and Hartley v The United Kingdom, Chahal v the United Kingdom, and Shamayey and Others v Georgia and Russia, to support its arguments and conclusions. The report highlights the failures of the Polish authorities to uphold the applicant's rights under the ECHR and provides a detailed legal analysis of each alleged violation, offering a clear understanding of the legal principles and their application to the specific facts of the case. The report concludes by emphasizing the binding effect of the ECtHR judgments and the obligation of states to comply with them.

Running head: INTERNATIONAL HUMAN RIGHTS LAW
International Human Rights LAW
Name of the Student
Name of the University
Author Note

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Table of Contents
Right to liberty and security............................................................................................................2
Right to fair trial..............................................................................................................................4
Failure of the polish authorities to prevent risk of ill-treatment in case of deportation..................6
Violation of Right to respect for Private and Family Life...............................................................9
Reference list.................................................................................................................................14

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European Court of Human Rights Advice
According to the statements of facts, the following substantial issues may arise amounting to
violations of the European Convention on Human Rights (‘the Convention’):
1) Applicant’s right to liberty and security (Article 5)
2) Violation of right to fair trial (Article 6)
3) The failure of the polish authorities to prevent the applicant from the risk of ill-treatment
in case of deportation (Article 3 and 5)
4) Violation of right to respect for private and family life (Article 8)
The European Convention on Human Rights (ECHR) is an international treaty that aims at
safeguarding fundamental freedoms and human rights in Europe. Any nationals of the state party
to the Convention may approach the European Court of Human Rights in case there is an
infringement of the rights of the individuals under the ECHR Convention. The judgments
delivered by the court have a binding effect upon the concerned States and they are under
statutory obligation to act in compliance with such judgments1.
Right to liberty and security
The applicant, Humza has been subject to arrest under the Counter Terrorism Act but has
not been presented before the judge and any authorized person conferred with the power of
exercising judicial powers within a reasonable time that commences from the time of arrests. It is
a clear violation of Article 5 of the Convention and the advice shall deal with the primary
1 Andenas, Mads, Eirik Bjorge, and Andreas Føllesdal. "National implementation of ECHR Rights." Constituting
Europe: the European Court of Human Rights in a National, European, and Global Context (2013).

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violation Article 5 and then examine any potential secondary violations of Articles 7 of the
Convention.
Article 5
The failure to present Hamza immediately before the judge has violated article 5(f) of the
Convention, which required the authorities to bring any person who has been lawfully detained
on the ground that action is being taken for deportation or extradition.
Hamza was waiting for the determination of his refugee status with the Polish
government but he was under surveillance by ISA and was arrested under the Counter-
Terrorism Act and detained for 14 days without charge under the criminal procedure statute of
the country. In the absence of any precise definition of the term ‘act of terrorist nature’ the Polish
authorities relied on the related legislations that states any person in private contact with a
member if a Polish intelligence agency shall be said to have been involved in an act of terrorist
nature.
Further, after the completion of the 14 days detention, the government applied for
continued detention and the interior Minister permitted 3 months detention as Hamza was
deemed to pose a threat to the national security of the country.
General principles
The ECtHR is not bound by the opinion of the domestic authorities while determining the
deprivation of liberty, thus, violating Article 5 of the Convention2. Although the domestic
government stated that there is evidence Hamza had accessed an online forum for discussing
2 Lavrysen, Laurens. "Protection by the law: the positive obligation to develop a legal framework to adequately
protect ECHR rights." Human Rights and Civil Liberties in the 21st Century. Springer Netherlands, 2014. 69-129.

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about the Syrian conflict, the ECtHR shall not consider the detention of Hamza and instead
would conduct an autonomous assessment of the circumstances of the case. The court shall
consider the duration and the manner of deprivation of liberty that has been raised by the
applicant. In Fox, Campbell and Hartley v The United Kingdom [1990], the applicants were
arrested for being suspected of being a terrorist and were detained for 72 hours. The court held
that there was a violation of Article 5 as the evidence based on which the detention was made
was not sufficient to establish ‘reasonable suspicion’ for the arrests.
Article 7
The penal detention of the applicant contravenes Article 7(1) of the Convention, which
prohibits the State authorities from imposing heavier penalties that was imposed after the
applicant was convicted3. In the given circumstances, since the applicant was not convicted of an
offence, the detention cannot be said to have followed conviction. The court may take into
consideration the detention procedure to determine whether the detention was lawful and
qualified for penalty.
Right to fair trial
According to Article 6 of the Convention, every person is entitled to a fair and public
hearing within a reasonable time by an independent judge or any tribunal established by law.
Article 6(2) states that every person who is charged with criminal offense shall be
deemed to be innocent until the person is proved guilty.
3 Grabenwarter, Christoph. "The European Convention on Human Rights: Inherent Constitutional Tendencies and
the Role of the European Court of Human Rights." ELTE LJ (2014): 101.

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Article 6 (3) (a) of the Convention states that every person who is charged with a
criminal offense has a right to be informed about the nature and cause of the accusation against
him without any delay.
Article 6 (3) (d) of the Convention entitles persons who are charged with criminal
offense to examine the witnesses against him and to obtain examination and attendance of the
witnesses on his behalf under the same conditions as witnesses against the person charged with
criminal offense.
In the given scenario, the applicant Jaroslaw pleaded before the regional court to seek
unconditional release from his duty of secrecy to be able to communicate with his lawyers and
prepare his defense4. He further pleaded before the court to provide him with the internal ISA
report based on which he was charged and the documents that had been leaked as both these
documents were missing from the file.
However, the court refused to provide the applicant with the documents on the ground
that as per the Internal Security and Foreign Intelligence Agency Act the release of such
documents shall harm the national interests or security. The court released the applicant on
conditions that the applicant shall not be able to cross-examine the authors of the statements.
This is a clear violation of the Article 6 (3) (d) of the Convention, which entitles that
every person who is charged with criminal offense shall examine the witnesses against him and
obtain examination and attendance of the witnesses on his behalf under the same conditions as
witnesses against the person charged with criminal offense.
4 Herz, Clara, and К. Херц. "The Impact of the European Convention on Human Rights (ECHR) on Preventive
Police Detention as Governed by German Law." (2017).

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On the other hand, Hamza was detained for 14 days without being charged and was not
presented before the Court within a reasonable time after the arrest which is a clear violation of
the Article 6 of the ECHR that requires every person to be brought before any independent judge
established by law. However, the Polish government could not find any material evidence
against Hamza regarding the fact that he received classified information from Jaroslaw as he was
in touch with him5. However, the government had evidences that he posed a threat to the national
security of the country, hence his detention was extended to 3 months. In Chraidi v Germany
[2006], the court held that under exceptional circumstances, the length of the applicant’s
detention is considered reasonable provided the cases are associated with international terrorism.
However, in Heaney v McGuinness v Ireland, the court held that if the justification given by the
government that the detention of a person was extended as the person posed a threat to the
national security of the country, the detention shall be held as violation of the Article 6 of the
convention6.
Failure of the polish authorities to prevent risk of ill-treatment in case of deportation
Where a real risk of ill-treatment lies in another state, it is the statutory obligation not to
send an individual to that particular state. The government deporting the applicant cannot justify
the deportation on the ground that the interest of the public of that nation is at stake and that the
deportation is necessary to safeguard the interests of the nationals7. The government cannot state
that the interests of the public shall be more important than the risk of ill-treatment that the
5 Wong, Tom K. Rights, deportation, and detention in the age of immigration control. Stanford University Press,
2015
6 Foldes, Stephan. "Reasons withheld and insufficient reasoning as due process violations: two cases before the
ECHR." (2016).
7 Galetta, Antonella, and Paul De Hert. "Complementing the surveillance law principles of the ECtHR with its
environmental law principles: An integrated technology approach to a human rights framework for surveillance."
(2014).

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deported person shall be subject to, on his return to such state. The rule shall apply irrespective
of the offense or conduct of the person who is subject to the risk of ill-treatment in case of
deportation.
In Chahal v the United Kingdom [1996], the applicant was deported on the ground that
his deportation is in the interest of the nationals. The applicant pleaded that he would be
subjected to ill treatment if he is deported to India. The ECtHR held that it would amount to a
violation of the Article 3 of the Convention that prohibits human beings from any inhuman and
degrading treatment8. The enforcement of the deportation order to India amounted to a violation
of the article.
Further, in Shamayey and Others v Georgia and Russia [2002], the applicant pleaded
that he would be subject to ill treatment if he is extradited in Russia and the court held that
extradition order would amount to a infringement of article 3 of the convention if such decision
was enforced.
In the given scenario, the applicant’s refugee application stated that if he is deported to
Russia he would be subject to immediate torture, detainment and potentially extra-judicial
execution owing to his relationship with his family members who have been identified as
members of the a certain nationalist-Islamist group which is considered as a terrorist
organization in Russia.
The polish authorities discovered that he was in contact with Jaroslaw and suspected him
to have received any classified information; however, the government found no record relating to
such information. He was arrested based on the reasonable suspicion of being involved in ‘act of
8 Krebs, Johannes. "The Right to a Fair Trial in the Context of Counter-Terrorism: The use and suppression of
sensitive information in Australia and the United Kingdom." (2016).

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terrorist nature’, which is described by the country’s legislation as any foreigner who is in private
contact with a member of a Polish Intelligence agency. However, a deportation order was issues
against him which expelled him from the country through the expedited deportation process that
deports non-citizens who are deemed to be terrorism suspects. After returning to Russia, the
Russian authorities arrested Hamza immediately on his return.
This establishes a clear violation of Article 3 of the Convention, which states that no
pesron shall be subject to any form of torture or any treatment, or punishment that is degrading
and inhuman by nature. As discussed in the Chahal’s case, the applicant would have ben
subjected to the risk of ill-treatment if deported to India, hence the deportation order was a
violation of the ECHR provisions9. Further, the Convention states that no person shall be
deported if there is a risk of being subject to inhuman and degrading treatment, without having
regard to the type of criminal offence with which the applicant has been charged. The Polish
authorities have passed a deportation order against Hamza on the ground that he may pose threat
to the interests of the nationals and the national security of the country. However, the ECHR
state that when there is a risk of facing inhuman and ill-treatment in the deporting country, the
interests of the public shall not amount to any reasonable ground to deport the applicant. Hence,
the Polish government has violated right to be prevented from inhuman, ill-treatment or
degrading treatment on deportation10.
9 D'Ambrosio, Dario Rossi. "The Human Rights of the Other-Law, Philosophy and Complications in the Extra-
Territorial Application of the ECHR." SOAS LJ2 (2015): 1.
10 Mueller, Tim Nikolas. "Preventive detention as a counter-terrorism instrument in Germany." Crime, Law and
Social Change 62.3 (2014): 323-335.

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Violation of Right to respect for Private and Family Life
According to Article 8 of the Convention, every person is entitled to respect the family
and private life, home and association. The public authorities cannot make any interference in the
exercise of this right unless such interference is authorized by law and is necessary to safeguard
the interest of the nationals, economic well-being and safety of the citizens living in the
democratic society in the country.
Further, such interference must be made in order to prevent any form of crime, disorder
or to safeguard the protection of the morals or health of the citizens of the country. Law
authorizes the interference if it purports to safeguard the rights and freedoms of the citizens of
the country. In the case of K2 v The United Kingdom [2017], the applicant was suspected to
have been associated with some terrorism-related activities in Somalia and was barred from re-
entering the country. The applicant claimed that his right to respect for private and family life
has been contravened. He further stated that he could have presented his case, from overseas, but
he was afraid of the fact that the Sudanese counter-terrorism authorities could intercept or hinder
his communications and cause harm to him11.
The Court held that although the deprivation of the citizenship of the applicant amounts
to violation of Article 8 in some circumstances but issues related to the right to respect for
private and family life was not present in the case12. Further, the interference of private and
family life caused due to the deprivation of citizenship was limited, hence was legal under
11 Vuille, Joëlle, Luca Lupària, and Franco Taroni. "Scientific evidence and the right to a fair trial under Article 6
ECHR." Law, Probability and Risk 16.1 (2017): 55-68.
12 Walder, Alexander. "Surveillance on the Internet: A Comparison of the United States and the European
Approaches to Protection and Privacy on the Internet in the Face of Increased Government Monitoring in an Effort
to Combat Domestic Terrorism." (2015).

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Article 8 of the Convention. Further, there were evidences that the applicant was involved in
terrorism-related activities; hence, there was no violation of Article 8 of the Convention.
In Klass and Others v Germany [1979-80], the applicants were five German lawyers
who claimed that the legislation of Germany have conferred the authorities with the power to
monitor the telephone and other electrical communications without necessitating the authorities
to acknowledge the persons who are being subject to such monitoring, about the measures that
are taken against such persons.
The court held that the right to respect for private and family life of the applicant
stipulated under Article 8 of the Convention was not violated. The court based its decisions on
the reasons that it is often observed that in the event there lies an threat of terrorism and
espionage that is complicated in nature, the legislation of some countries may grant its
authorities the power to conduct secret surveillance. However, such secret surveillance shall be
undertaken under exceptional circumstances. Such exceptional circumstances include if the
surveillance is a necessity to safeguard the interests of the nationals, prevent the national security
of the country and prevent any form of disorder or crime13.
In the given scenario, the ISA was conferred with the powers to undertake the
surveillance program under the Counter-Terrorism Act without informing the persons about the
fact that their calls, communications and the other electronic devices were subject to surveillance
on a 24-hour basis irrespective of the fact whether such person is under investigation14. The
applicant, Jarslow was being under secret surveillance even before he was subjected to
13 Margalit, Alon. "Recent Trends in the Application of Human Rights and Humanitarian Law." Journal of
International Humanitarian Legal Studies 7.1 (2016): 156-182.
14 Tzanou, Maria. "European Union regulation of transatlantic data transfers and online surveillance." Human Rights
Law Review (2017): ngw046.

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investigation and it was due to this investigation that the ISA and the Polish authorities
developed a reasonable suspicion on him about the fact that he has been transferring classified
information to third parties. However, they had no material evidence to establish that he was
associated with any terrorist related activities even then he was being subject to secret
surveillance and was not even informed about the same.
Although the fact that the legal authorities did not find any evidence that would indicate
that Jarslow was involved in terrorist related activities and subjected him under secret
surveillance, does raise the question of infringement of Article 8 of the Convention to certain
extent. However, the court cannot completely ignore the fact that it was due to such secret
surveillance, that the ISA could discover that Jarslow provided classified copies and information
to third parties outside the services. As was held in K2’s case, that although the deprivation of
citizenship did not violate Article 8 of the applicant as the applicant was found to hve been
engaged in terrorism related activities15.
Similarly, Jarslow was found to have shared information to their parties. Therefore,
Jarslow’s right to respect for private and family life was limited as he was an interpreter and
intelligence analyst and possessed sufficient important information about the country. If such
documents are leaked, it is obvious that it would pose a threat to the national security and safety
of the nationals16. Therefore, the court may not consider that Jacob’s right to privacy and family
life was violated.
15 Guild, Elspeth. "Understanding Immigration Detention in the UK and Europe." Immigration Detention, Risk and
Human Rights. Springer International Publishing, 2016. 141-155.
16 Broberg, Morten, and Niels Fenger. "Preliminary References to the Court of Justice of the EU and the Right to a
Fair Trial under Article 6 ECHR." European Law Review 41.4 (2016): 599-607.

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On the other hand, the other applicant Hamza was also subjected to constant surveillance
by the ISA as he was reasonably suspected to have received classified information although no
record was founded relating to the same. Hamza was detained under the Counter Terrorism Act
but the statute did not provide any definition of ‘act of terrorist’ but relied on accompanying
legislation that considered private contact with a member of a Polish intelligence agency by any
foreigner to be ground to arrest such foreigner.
This may raise the question of violation of Hamza’s right to private life and family under
article 8 of the Convention, as they authorities commenced such monitoring on the ground that
Hamza may have received some classified information from Jarslow. However, no record was
found but he was arrested merely because he was in contact with Jarslow who was a member of
Polish Intelligence agency and had accessed to websites discussing about Syrian conflict.
However, as was observed in the Klass’s case, the court asserted that in case the national
government finds that any person poses a threat of terrorism and espionage, the legislations of
the country might permit secret monitoring surveillance under exceptional circumstances17.
Where there is need to prevent crime or disorder and safeguard the safety of the nationals, the
legislation shall allow the authorities to monitor electrical communications of the suspected
persons in the interest of the nationals of the country18.
In the given scenario, the polish authorities have valid reasons to undertake secret
surveillance. Firstly, Hamza’s refugee status stated that he would be ill-treated, if deported in
Russia, because of his relationship with his family members who have been recognized to be
17 Vrolijk, Marloes Anne. "Immigration Detention and Non-removability Before the European Court of Human
Rights." Immigration Detention, Risk and Human Rights. Springer International Publishing, 2016. 47-72.
18 Grange, Mariette, and Izabella Majcher. "When Is Immigration Detention Lawful? The Monitoring Practices of
UN Human Rights Mechanisms." (2017).

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terrorist organization. Secondly, he had been in private contact via email with Jarslow who is a
member of the Polish Intelligence system and was arrested for transferring classified documents
to third parties outside the service. This establishes a ground of ‘act of terrorist nature’ under
which he was arrested. Lastly, the Polish government had evidence that the applicant Hamza
may have had connections with the Islamic State fighters in Syria, which is evident from the
browsing history of the applicant that revealed that Hamza had an access to an online website
that prides a platform to discuss about the Syrian conflict.
If these findings are taken into consideration, to some extent it gives rise to the
exceptional circumstances under which, the legislation of some countries may allow secret
surveillance for the safety of the nationals and country. Under such circumstances, the violation
of article 8 is limited.

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Reference list
Andenas, Mads, Eirik Bjorge, and Andreas Føllesdal. "National implementation of ECHR
Rights." Constituting Europe: the European Court of Human Rights in a National, European,
and Global Context (2013).
Broberg, Morten, and Niels Fenger. "Preliminary References to the Court of Justice of the EU
and the Right to a Fair Trial under Article 6 ECHR." European Law Review 41.4 (2016): 599-
607.
Chahal v the United Kingdom [1996] ECHR 54
Chraidi v Germany [2006] 47 EHRR 47 para 37
D'Ambrosio, Dario Rossi. "The Human Rights of the Other-Law, Philosophy and Complications
in the Extra-Territorial Application of the ECHR." SOAS LJ2 (2015): 1.
Foldes, Stephan. "Reasons withheld and insufficient reasoning as due process violations: two
cases before the ECHR." (2016).
Fox, Campbell and Hartley v The United Kingdom [1990] 13 EHRR 157
Galetta, Antonella, and Paul De Hert. "Complementing the surveillance law principles of the
ECtHR with its environmental law principles: An integrated technology approach to a human
rights framework for surveillance." (2014).
Grabenwarter, Christoph. "The European Convention on Human Rights: Inherent Constitutional
Tendencies and the Role of the European Court of Human Rights." ELTE LJ (2014): 101.
Grange, Mariette, and Izabella Majcher. "When Is Immigration Detention Lawful? The
Monitoring Practices of UN Human Rights Mechanisms." (2017).
Guild, Elspeth. "Understanding Immigration Detention in the UK and Europe." Immigration
Detention, Risk and Human Rights. Springer International Publishing, 2016. 141-155.
Heaney v McGuinness v Ireland [2001]ECtHR
Herz, Clara, and К. Херц. "The Impact of the European Convention on Human Rights (ECHR)
on Preventive Police Detention as Governed by German Law." (2017).
K2 v The United Kingdom [2017] ECHR 238
Klass and Others v Germany [1979-80] 2 EHRR 214

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Krebs, Johannes. "The Right to a Fair Trial in the Context of Counter-Terrorism: The use and
suppression of sensitive information in Australia and the United Kingdom." (2016).
Lavrysen, Laurens. "Protection by the law: the positive obligation to develop a legal framework
to adequately protect ECHR rights." Human Rights and Civil Liberties in the 21st Century.
Springer Netherlands, 2014. 69-129.
Margalit, Alon. "Recent Trends in the Application of Human Rights and Humanitarian
Law." Journal of International Humanitarian Legal Studies 7.1 (2016): 156-182.
Mueller, Tim Nikolas. "Preventive detention as a counter-terrorism instrument in
Germany." Crime, Law and Social Change 62.3 (2014): 323-335.
Shamayey and Others v Georgia and Russia [2002] ECHR
Tzanou, Maria. "European Union regulation of transatlantic data transfers and online
surveillance." Human Rights Law Review (2017): ngw046.
Vrolijk, Marloes Anne. "Immigration Detention and Non-removability Before the European
Court of Human Rights." Immigration Detention, Risk and Human Rights. Springer International
Publishing, 2016. 47-72.
Vuille, Joëlle, Luca Lupària, and Franco Taroni. "Scientific evidence and the right to a fair trial
under Article 6 ECHR." Law, Probability and Risk 16.1 (2017): 55-68.
Walder, Alexander. "Surveillance on the Internet: A Comparison of the United States and the
European Approaches to Protection and Privacy on the Internet in the Face of Increased
Government Monitoring in an Effort to Combat Domestic Terrorism." (2015).
Wong, Tom K. Rights, deportation, and detention in the age of immigration control. Stanford
University Press, 2015.

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