The issue of reprisals against individuals who seek to cooperate with the UN human rights system, of which there are recent very grave examples, is one of the most pressing challenges facing the UN Human Rights Council, writes Sir Nicolas Bratza. 

By Sir Nicolas Bratza, former President of the European Court of Human Rights

It is difficult to overstate the importance to the effective safeguarding of fundamental rights that those complaining of a violation of those rights should have unhindered access to international institutions set up with the specific function of their promotion and protection. Those institutions, for their part, carry a heavy responsibility to ensure such access by taking effective measures to prevent such hindrance and to protect the individual and those representing him or her from against acts of intimidation or reprisal for communicating or cooperating with them.

The issue of reprisals against individuals who seek to cooperate with the UN human rights system, of which there are recent very grave examples, is one of the most pressing challenges facing the UN Human Rights Council. Such reprisals violate international human rights law; they impede the Council’s ability to discharge its mandate effectively; they threaten the integrity of the Council as the primary human rights organ of the United Nations; and they thereby undermine the credibility of the work of the United Nations as a whole in the field of human rights.

In determining its approach to reprisals, the Council should take note of the emerging good practice of other international institutions in this area, including the approach of the European Court of Human Rights in which I was privileged to serve as a judge and as President. Complaints of interference with the exercise of the right of individual petition to the Strasbourg Court, guaranteed by Article 34 of the European Convention, are regrettably by no means uncommon. The case–law contains well in excess of a hundred cases in which such complaints have been made, in many of which the complaint has been upheld. These range from the stopping or delaying by the authorities of letters to the Court, to the initiation of disciplinary proceedings against the applicant’s representative for breaching confidentiality in communicating with the Court, to the interrogation of an applicant as to the reasons for communicating with the Court and forcing them to retract the complaint, to the direct intimidation of, or reprisals against, the applicant or their representatives for lodging an application or corresponding with the Court. The Strasbourg Court has consistently made clear that the right guaranteed by Article 34 is an absolute right which permits of no hindrance, and that it is of the utmost importance that applicants and their representatives are able to communicate freely with the Court, without being subjected to any form of pressure from the authorities to dissuade them from pursuing a complaint or to withdraw or modify a complaint, once made. The word “pressure” has been given the widest meaning, as covering not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to discourage them from pursuing a Convention remedy.

Where a complaint of hindrance, intimidation or reprisals is made, it is invariably examined by the Court, which may seek detailed explanations from the respondent government where a credible claim of interference is advanced. In reaching its assessment as to whether improper pressure has been imposed on an applicant or his or her representative, the Court will have regard to all the circumstances of the case and in particular will take account of the vulnerability of the complainant and his or her susceptibility to influence or pressure exerted by the authorities. The Court’s examination is commonly made the more difficult by the insufficiency of the information to confirm a link between the act of hindrance complained of and the application to the Court. Thus, in the case of Bitiyeva v. Russia (2007), one of the Chechnyan applicants to the Court was brutally killed after she had lodged a complaint in Strasbourg alleging serious human rights violations by State agents. The Court, noting that the conclusion that there was a causal link between the two could not be based on mere supposition, went on to express its deepest regret that no effective investigation to elucidate the circumstances of the death had taken place at national level – a failure which resulted in the finding against the State of separate violations of Articles 2 and 3 of the Convention. 

Whether or not the Court’s examination results in a finding of a breach of Article 34, a separate section of the judgment is devoted to the issue, in which the Court’s conclusion and reasoning are fully set out. Where a violation is found, it will frequently be met by an award to the applicant of compensation against the State concerned, often in substantial amounts. 

While the role of the Strasbourg Court and the legal framework under which it operates are significantly different from those of the Council, the Court’s strong and consistent response to complaints of intimidation and reprisals may serve as a useful illustration of good practice in meeting the challenge faced by the Council. In particular, the Court’s approach reinforces the need for (i) a clear statement condemning all acts of intimidation or reprisals against those communicating or cooperating with the Council and of the steps the Council will take on receipt of credible information of such acts; (ii) a prompt and effective investigation whenever such credible information is provided, with a view to holding accountable the party responsible; and (iii), where such acts are found to be established, the public and unambiguous condemnation of the party responsible, combined with the provision of an effective remedy for the victim.

Sir Nicolas Bratza is former President of the European Court of Human Rights and served as a judge of that court from 1998 to 2012. He is also a Board member of the International Service for Human Rights.