Wednesday, 15 August 2018

Protocol 16, New Rules of Court and Website on Impact of the ECHR

It is the midst of Summer, but important times for the European Convention of Human Rights system. On 1 August, the new Protocol 16 entered into force for those state parties that have ratified it. This means the European Court will be able to now give advisory opinions upon request of the highest national courts and tribunals related to the interpretation or application of ECHR rights. Thus far, the following states have ratified: Albania, Armenia, Estonia, Finland, France, Georgia, Lithuania, San Marino, Slovenia and Ukraine. As a consequence, the Court has also amended its Rules of Court as of 1 August, inserting provisions on Protocol 16 (the new rules 91 to 95) outlining how this should be implemented in practice.

Related to another aspect of implementation - impact of the Convention - the Council of Europe has launched a new website on this theme, geared towards the general public. This is what the website includes in the words of its makers:

"The Council of Europe has launched a new interactive website highlighting the positive impact of the European Convention on Human Rights across the continent.

The site illustrates how judgments from the European Court of Human Rights, and their implementation by national authorities, have affected people’s lives in many different ways across all 47 Council of Europe member states.

“The European Convention on Human Rights protects the basic rights of some 830 million people across the whole of Europe,” said Council of Europe Secretary General Thorbjørn Jagland.

“Focussing on a small proportion of the cases decided by the Strasbourg court, this new website clearly demonstrates what the convention system has achieved so far and the positive impact it continues to have on many people’s lives. I encourage all those who support human rights, democracy and the rule of law to make good use of it.”

The interactive website uses textual summaries, infographics and audiovisual materials to show how judgments from the European Court of Human Rights have helped to change policies and practices in Council of Europe member states and to improve the situation of individual applicants.

101 different case studies are presented by country and by topic, with separate sections explaining how the system works and the state of implementation of other key Council of Europe conventions.

The site is currently available in English, French and Turkish. A Russian-language version will be launched shortly.

The site will be updated and further developed on an on-going basis, depending on the funds available. The initial development and launch of the site cost €92,000, funded through voluntary contributions from the governments of Finland, Ireland and Norway."

Friday, 10 August 2018

Training on Implementation of Asylum and Migration Cases

The European Implementation Network has issued a call for applications for an interesting new thematic training in Strasbourg on 11 and 12 October. Please note: the deadline to apply is soon,  17 August. Staff of non-governmental organisations (NGOs) is invited to participate in a thematic training seminar on advocating for full and effective implementation of judgments of the European Court of Human Rights (ECtHR, ‘the Court’) in the field of asylum and migration. Please see the information of the organisers below: 

'The Court has, over the past years, developed a large body of case law on a range of issues relating to refugee and asylum policy, procedural requirements in the migration process, the reception conditions of migrants and asylum seekers, and their access to remedies in states parties to the European Convention on Human Rights (ECHR). At the same time, advocating for the internationally recognised rights and freedoms of foreign nationals has become increasingly challenging in the face of a rise of populism across Europe, much of which has been fuelled by anti-immigration sentiment. It is therefore of paramount importance that asylum and immigration lawyers expand their strategies and develop new tools to uphold the rights of migrants, asylum seekers and refugees, including by more actively promoting the implementation of relevant ECtHR judgments.   

NGOs are accorded a critical role in the Council of Europe’s (CoE) process that underpins the supervision by the Committee of Ministers (CM) of the implementation of these judgments (known as the CM judgment execution process). This is made possible under Rule 9.2. of the Rules of the CM. However, there is little readily accessible information on how this process works and how NGOs can engage with it to maximise its effect, with the result that this powerful mechanism for implementing human rights is underutilised. 

The aims of the seminar are to equip NGOs to use the CM judgment execution process to support full and effective implementation of ECtHR judgments; and to share best practice on advocating for implementation of the Court’s judgments in the asylum and migration field at the national level.

Date and place of the seminar:
Date:                   Thursday, 11 – Friday, 12 October 2018
Place:                  Strasbourg, European Youth Centre (EYCS)
Arrival:                In the afternoon/evening of Wednesday, 10 October
Departure:          Friday, 12 October (afternoon at the earliest)

Seminar content:

The seminar will cover the following issues:
  • The CM execution process and the role of NGOs;
  • How to use Rule 9.2 submissions to advocate for effective implementation of the ECtHR’s asylum/migration case law at national level: case studies;
  • Rule 9.2 submissions: group exercises on developing general measures and/or responses to non-implementation. The session is aimed at helping participants who have not engaged with the CM judgment execution process to do so – acquiring knowledge and expertise from other participants.
  • Advocacy: EIN and Strasbourg-based advocacy; advocating for improved implementation structures at the national level.

Training methodology:
The seminar will combine:
  • Presentations by experts on how to engage effectively with the CM judgment execution process;
  • Sharing of learning by participants who have already engaged with implementation of ECtHR judgments, whether through the CM judgment execution process or at the domestic level;
  • Group exercises to draft a Rule 9.2 submission on a case pending before the CM.  

It is envisaged that case studies will address some of the following themes: 
  • Ill-treatment in law enforcement of migrants, including asylum seekers;
  • Access to territory and collective expulsions;
  • Forced returns, freedom from torture and the right to an effective remedy;
  • Unlawful detention of migrants, including asylum seekers; and
  • Asylum procedures, reception and detention conditions (Dublin returns).

Target audience:
Staff of NGOs working on, or planning to work on, implementation of ECtHR judgments relating to asylum and/or migration; independent lawyers supporting NGOs in these activities.

Criteria for selection of participants:
Participants will be selected on the basis of following criteria:
  • The impact resulting from full and effective implementation of any (leading) cases their organisation is supporting.
  • Any relevant experience the participant is able to share. The training methodology requires a number of participants with particular attributes – some with experience in different aspects of implementation, others with cases which will be particularly suitable for group exercises.
  • Participants will be limited to one per NGO and are required to have a good working knowledge of English. They must be present for the full duration of the seminar.

Travel and accommodation expenses:
EIN will cover the costs of participants’ travel, accommodation, food and visas. Guidelines on the funding procedure will be provided to those applicants selected to participate.

Application process:
Please complete the application form and return to Anne-Katrin Speck (a.speck at, with a copy to Agnes Ciccarone (aciccarone at by Friday, 17 August 2018. Please also arrange for your organisation to send a letter supporting your application, confirming that you have a good working knowledge of English and can be present for the full duration of the seminar.

The results of the application review will be made known to applicants in the first week of September.'

Monday, 2 July 2018

New Judge in Respect of San Marino

Last week, the Parliamentary Assembly of the Council of Europe (PACE) elected a new judge to the European Court of Human Rights. Mr Gilberto Felici was elected as the new judge in respect of San Marino. His term shall start in September of this year and he will succeed current judge Kristina Pardalos. Mr Felici is currently both a judge and a lecturer. He is very familiar with another branch of the Council of Europe's work, as he was also a member of ECRI (the European Commission against Racism and Intolerance) since 2003.

Wednesday, 6 June 2018

My New Article on the European Court of Human Rights as a Norm-Broker

I am very happy to announce that my new article, co-authored with my good colleague and friend dr Michael Hamilton (University of East Anglia) has just been published in the Human Rights Law Review (Vol. 18, Issue 2, 2018, pp. 205-232). The article is entitled 'Human Rights Courts as Norm-Brokers'. This is the abstract:

'This article develops an understanding of human rights courts as ‘norm-brokers’. We regard ‘norm-brokering’ as an exegetic method of judicial reasoning, ultimately concerned with reason-giving and the quality of justification. It entails robust engagement with alternative norms raised in the course of human rights adjudication. Norm-brokering thus involves much more than the mere cataloguing of alternative norms—and, at a minimum, a methodical approach to the question of normative harmonization. We suggest that the process of norm-brokering contributes to ‘public reason’ by enhancing the intelligibility of judgments. This, in turn, helps confound legitimacy-based critiques of human rights courts. The argument is supported by an analysis of 10 years’ worth of European Court of Human Rights judgments, focusing on the ways in which norms from the Inter-American human rights system are relied upon (or not) by the Strasbourg Court.'

Tuesday, 5 June 2018

Summer School on Fundamental Rights in the EU and ECHR

The University of Bologna, King’s College London and the University of Strasbourg are co-organising a summer school “The Protection of Fundamental Rights in Europe” (Bertinoro, 24-29 June 2018). This 18th edition, is hosted in the Castle of Bertinoro (see photo), and it involves around 30 hours of lectures on the topic of the protection of fundamental rights in both the EU and ECHR systems. According to the organisers: 

'The Summer School aims to provide graduates, practictioners and young researchers (Ph.D. candidates) with an in depth background of the protection of fundamental rights at European level. The general courses are about the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. The single lectures tackle topics alike asylum and migration, national identites and EU law, relationship between the CJEU and the ECHR, EU external action, the margin of appreciation doctrine, commercial law and fundamental rights. 

Thanks to the support of the Fondazione Cassa dei Risparmi di Forli, selected participants are fees-waived and complimentary half-board accommodation for 5 nights is included.'

Further information and the call for application can be found here

Saturday, 26 May 2018

10 Years ECHR Blog

Today, exactly ten years ago, on 26 of May 2008, I started the ECHR Blog. The idea for the blog had come up in conversations with a few friends and colleagues, in which we noted that there was a gap in the, at the time, still newly emerging blogosphere. There were blogs on international law, on European law, on human rights, but none on the ECHR specifically. And thus I embarked that day on an endeavor of which I had no clue that I would still be at it a decade later. In the initial post, I expressed the hope that the blog could be a "portal to information on the European Court of Human Right and its judgments and decisions." 

I started to post on case-law, on new publications, political developments and academic events, all related to the European Convention on Human Rights and its Court. And after a few months, I heard - to my slight apprehension, to be honest - that not just fellow academics, but even some judges at the Court itself were reading the posts. Over these ten years, I have posted 956 posts (counting the current one) and the blog has attracted over 2.2 million pageviews from across the globe, including from states where human rights information is not always readily accessible or even simply blocked. 

These ten years of keeping up and developing the blog would not have been possible without the help of countless people. First off, the pioneer legal bloggers that inspired me, the other law-related blogs that helped me link up to a wider community, the guest bloggers who were willing to share their insights on Strasbourg developments, and the many, many readers who fed this blog with news, publications, event announcements and much more. It is a truism, but without my readers, I would not have been able to keep this up. A big thank you to all of you - your exhortations, kind messages, information and simply interest and visits to the blog, have helped to keep it going. For, I can reveal, that there is no army of academic slaves working invisibly to run the blog (as several people asked over the years) - I have always been doing the postings myself. From the days of being a beginning lecturer up to my current position, this has of course become increasingly challenging, because of many other obligations - and as some avid readers must have noticed the frequency has decreased over the years, keeping pace with an increasingly demanding job. But it is still a joy to do and it has intensely enriched my academic life in many ways, making new friends along the road!

Please keep sending me your ECHR-related information and feel free to reach out to me with your remarks on the blog. Your input is the vital lifeline of the ECHR Blog!

Wednesday, 16 May 2018

Guest Blog Commentary on Ne Bis in Idem

It is my pleasure to introduce a guest commentary by my Utrecht University colleague dr Bas van Bockel. He has written a commentary on the interesting recent inadmissibility decision in Krombach v France, that relates to the ne bis in idem principle of Article 4 of Protocol 7 ECHR and to the Strasbourg-Luxembourg relation.

Krombach Returns to Strasbourg
Bas van Bockel, Utrecht University

After the death of 15-year-old Kalinka Bamberski in Germany in 1982, a criminal investigation was launched with the plaintiff dr. Krombach, the girl’s stepfather, as the suspect. The investigation and in particular the handling of the forensic aspects was botched, and the public prosecutor discontinued the prosecution of Krombach for lack of evidence. Convinced that his daughter was sexually abused and killed by her stepfather, Kalinka’s father mr. Bamberski attempted to have the decision by the German authorities ending the prosecution reversed. When this failed, he adhered the French authorities because of the victim’s French nationality. Krombach was tried and sentenced to 15 years imprinsonment in absentia by the Paris Court of Assizes. Krombach did not appear in court in France for fear of being arrested and his trial was conducted under the French “contempt procedure” (jugement par contumace) under which an absent subject is legally prevented from defending him- or herself. This led to an earlier judgment before the ECtHR matter (ECHR 13 February 2001, no. 29731/96), in which the ECtHR ruled in Krombach’s found an infringement of both the right to a fair trial (art. 6 ECHR) and the right to an appeal (art. 2 Protocol 7 ECHR).

This did not alter the fact that Krombach was still wanted in France, whilst he was living freely in Germany. Bamberski attempted in vain for Krombach to be surrendered to the French authorities. In the end, he resolved to make arrangements for him to be kidnapped and taken to France by force. In 2009 Krombach was found bound gagged and wounded in the streets of a French city near the German border after the police were alerted to his presence by an anonymous caller. He was arrested, (re-)tried and sentenced again by a French court, this time for for causing bodily harm resulting in the death of Kalinka Bamberski. In the procedure before the ECtHR that would follow, Krombach complained that his conviction violated the ne bis in idem principle of art. 4 Protocol no. 7 to the ECHR, in view of the fact that his previous prosecution in Germany (and not his earlier conviction in absentia in France) was finally discontinued for lack of evidence.

The Court held the application to be admissible because the ne bis in idem principle of Article 4 of Protocol 7 ECHR only applies to situations within one and the same state party. Although France and Germany are both EU Member States and a broader, “transnational” ne bis in idem rule in the form of Article 54 of the Convention on the Implementation of the Schengen Agreement is in force within the EU, this provision has no bearing on the scope of application of Article 4 of Protocol 7 ECHR. The Court finds that it lacks competence to apply rules contained in EU law or to rule on a possible breach of those rules, except where a breach of a rule of EU law incidentally also breaches a right from the Convention. It is therefore up to the member states and in particular the national judiciary to interpret and apply national law in the light of the applicable provisions of Union law, and the Court is not in a position to rule on a potential breach of EU law. The application is declared inadmissible. In itself the decision does not come as a surprise given the wording of Article 4 of Protocol 7 ECHR. Although the question of the international (non-)application of that provision was debated around the time that the 7th Protocol was drafted and adopted (1984), that debate has now been put to rest because the wording of the provision excludes the possibility of international application of the ne bis in idem provision contained in it.

The decision raises interest because of what the Court says about its own role in relation to European Union law. In the decision, the Court sets out a seemingly straightforward division of tasks under which the national judiciary interprets and applies national law in the light of any relevant EU law. According to it, the ECtHR “merely” establishes the compatibility of the result with ECHR law, without prejudice to any national or EU arrangement in the field of human rights. This could be interpreted as further clarifying where the line between EU and ECHR law is drawn as far as the Court is concerned, while at the same time making it clear that the Court does not intend to overstep that line by applying Convention standards (directly) to EU law.  

No doubt, this part of the Court’s decision will be interpreted as a reaction to the position taken by the CJEU in Opinion 2/13 (CJEU 18 December 2014, ECLI:EU:C:2014:2454) on the compatibility of the draft accession agreement of the EU to the ECHR. In that Opinion, which has been widely criticised (see, amongst others, here, here, and here), the CJEU essentially held that accession to the ECHR could threaten the autonomy of EU law. The Grand Chamber reacted to Opinion 2/13 in Avotiņš v. Latvia (ECtHR 23 May 2016, nr. 17502/07, ECLI:CE:ECHR:2018:0220DEC006752114), in which it confirmed that the so-called “Bosphorus presumption”, named after the 2005 judgment in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, still stands firmly, although by no means unconditionally.

The interesting thing about Krombach II is that the question raised in it is not one along the usual lines (of whether any part of EU law is capable of violating ECHR standards), but rather a question of whether a fundamental right from EU law (i.e. Article 54 CISA) is capable of determining the scope and interpretation of a Convention right.  It is therefore interesting to note that this appears to raise some of the same sensitivities. One possible reason for this could be that if the Court were to interpret Convention rights like Article 4 of Protocol 7 ECHR in accordance with provisions from EU law like Article 54 CISA in situations in which EU member states are involved, this would effectively allow the Court to rule on (parts of) EU law indirectly, though the interpretation and application of Convention rights. Whether the CJEU was actually concerned about such a “backdoor issue” or not, the Court’s decision in Krombach II makes it very clear that this will not happen. In doing so, the Court also makes it clear that it intends to conduct itself in the most diplomatic and respectful way possible vis-à-vis the Luxemburg court, in the very sensitive area between the Convention and EU law.  

Friday, 11 May 2018

New Book on Great Debates and the ECHR

Fiona de Londras (University of Birmingham) and Kanstantsin Dzehtsiarou (University of Liverpool) have written a new book entitled Great Debates on the European Convention on Human Rights. The book was published with Macmillan Publishers and was written for higher education teaching. This is the summary:

'This engaging textbook provides a critical analysis of the legitimacy and effectiveness of the European Convention on Human Rights and its practical operation. In a succinct way, the book investigates questions around the legitimacy of how the European Court of Human Rights develops its law, the obligations of states to comply with its judgments, the adequacy of the Convention in securing basic goods, and the effectiveness of the system in protecting rights ‘in the real world’. It assesses some under-explored areas of the Convention that are often overlooked. Presenting a number of debates about the legitimacy and effectiveness of the system in a provocative and critical style, this book encourages debate, discussion, and self-reflection on how, when and why the Convention protects human rights in Europe.

An ideal text for Law students at English and Welsh universities and higher education institutions taking a module in The European Convention on Human Rights (LLB or LLM level), and for GDL/CPE students and those taking the postgraduate LPC training course.' 

Tuesday, 1 May 2018

Case-Law Guide on Article 18 ECHR

The Court has put a new case-law guide online on its website. The new guide deals with Article 18 ECHR which concerns limitation on the use of restrictions on rights. The article provides: 

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

It has become topical in a number of cases of the past few years, after having been "dormant" for much of its existence. Since the article deals with the "misapplication" of power by state authorities( according to the Convention's travaux préparatoires), it could be seen as a litmus test for deep rule of law problems. Thus, the increased jurisprudential attention to this provision is telling in itself. See, for example, the Grand Chamber judgment in Merabishvili v Georgia of November 2017 in which the Court found a violation of Article 18.

The Case-law Guides series reflect the Court’s major judgments, organised by Convention article. The reviews of the case-law are regularly updated and translated into other languages.

Wednesday, 25 April 2018

New Judge in Respect of Montenegro

Yesterday, the Parliamentary Assembly of the Council of Europe elected the new judge in respect of Montenegro at the European Court of Human Rights. With a large majority (101 of 160 votes cast), Ms Ivana Jelić was elected. She will succeed her predecessor Nebojša Vučinić within three months.

The new judge comes from academia and was until now associate professor of the Faculty of Law and Faculty of Political Science of the University of Montenegro. She has wide experience in the international human rights system, most notably as a member (since 2015) and Vice President (since 2017) of the United Nations Human Rights Committee, which supervises the ICCPR. From the perspective of coherence of international human rights law, this election may therefore offer opportunities. I wish her all the best in her new position!