Monday, 28 November 2016

Conference on the European Court and Media Freedom

On 24 March 2017, the European Centre for Press and Media Freedom, supported by the Council of Europe, will organsie a conference on media freedom in Strasbourg. The conference, entitled “Promoting dialogue between the ECtHR and the media freedom community”. will be held in the Council of Europe’s Agora Building in Strasbourg. The event is orgnaised in cooperation with a number of press freedom NGOs as well as academic institutes. This is the organisers' abstract of the conference's content and aims: 

"The one-day conference aims to bring together judges and lawyers of the European Court of Human Rights and media lawyers, academics, policymakers, journalists, media professionals and civil society representatives active in the field of media law and freedom of expression. It will provide a platform to discuss the ECtHR case law in cases concerning freedom of expression of media and journalists.Key themes to be discussed during the conference include:

* Defamation, privacy and the processing of personal data;
* Investigative journalism, access to information, protection of sources and whistle-blowers;
* The right to protest and the role of the media during protests."

For more information, see the full concept note about the conference here.

Thursday, 24 November 2016

MHB v Hungary Judgment on Access to Information

It is my pleasure to introduce a guest post in the form of a commentary by professor Renata Uitz of Central European University. She has written a commentary on the recent case of Magyar Helsinki Bizottság v. Hungary, on which the European Court issued its judgment two weeks ago. Amongst others, it further clarifies the notion of "public watchdogs". Here is her guest commentary on this important case on access to information:


Protecting Access to Information Under Article 10: A Small Step With Major Implications

Renata Uitz

On November 8, 2016 in the judgment of Magyar Helsinki Bizottság v. Hungary, the Grand Chamber consolidated the jurisprudence of the Court on access to information under Article 10. In addition, the judgment sheds light on the interpretation of the Convention in cases where the text is silent on a particular issue. Finally, the case allows some insight into how the ECtHR may build on disagreement in a member state concerning the Court’s role in developing European human rights standards. One of these points would be reason enough to make a judgment important. All three of them in a single case may well make it matter for many years to come.

Background

The facts of the case concerned the rejection by the police of an access to information request submitted by the Magyar Helsinki Bizottság (the Hungarian Helsinki Committee) under the Hungarian act on data protection and access to information. The denial of access was later confirmed by the Supreme Court. The applicant is a much respected civil rights organization which has brought several cases of its clients via strategic litigation before Hungarian courts as well as before the European Court. This particular case, in which they eventually became the applicant themselves, they did not start as one. In fact, once the case was accepted by the Grand Chamber legal counsel for a specialized freedom of information NGO, atlatszo.hu joined forces with the Helsinki Committee’s lawyers before the ECtHR.
The Helsinki Committee participated in a European research project on transparency in the appointment of public defenders, for which they needed data on the manner of appointment of public defenders in Hungary. While several police departments complied with their request under the 1992 act on access to information, some refused, arguing that the names of public defenders were personal data which could not be disclosed in the public interest. One such police department was also the home of a large refugee camp in Hungary, so data from that department were particularly interesting for the research project on public defenders. Upon appeal the Hungarian Supreme Court ruled that a “defence counsel cannot be regarded as ‘other persons performing public duties’, since no powers or competences defined by law are vested in them.

Article 10 and Access to Information

At the time when the Helsinki Committee turned to the European Court in 2011, the existing case-law already suggested that civil society organizations – similarly to journalists – qualified as watchdogs in the context of Article 10. In a similar case, Társaság a Szabadságjogokért v. Hungary the Court had already found that the following:

"The Court has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom which serves to impart information and ideas on such matters. In this connection, the most careful scrutiny on the part of the Court is called for when the measures taken by the national authority are capable of discouraging the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern, even measures which merely make access to information more cumbersome." (para. 26, internal references omitted)

Compared to this and similar cases, the complaint of the Helsinki Committee did not raise a novel issue, although the section judgment in Társaság v Hungary may be read as a departure from Leander v. Sweden where the Court found that “Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual” (para 74). This potential inconsistency in Article 10 jurisprudence has been pointed out by some commentators.

The underlying difficulty of the protection of access to information under Article 10 is easy to see. Article 10 protects the right to “to receive and impart information.” In contrast, Article 19 of the ICCPR and Article 13 of the American Convention protect the right “to seek, receive and impart information” (emphasis added). The drafting history of Article 10 reveals that the express reference to the right “to seek” information was removed from the text of Article 10 upon the request of the United Kingdom. The United Kingdom intervened before the Grand Chamber to emphasize this point (paras. 99-103), stressing that if the Grand Chamber were to recognize a right to access to information, it would “far exceed the legitimate interpretation of the Convention and would amount to judicial legislation” (para. 103).

More importantly, UK courts had serious reservations about the development of Article 10 case-law along the lines of Társaság v. Hungary. In 2014, in Kennedy v. Charity Commission, the UK Supreme Court in several opinions expressed strong reservations about the state of Strasbourg case-law on freedom of information under Article 10 and called on the sections of the Court to relinquish jurisdiction in similar cases (per Lord Mance):

"The Strasbourg jurisprudence is neither clear nor easy to reconcile.In the present case, Strasbourg has spoken on a number of occasions to apparently different effects. Further, a number of these occasions are Grand Chamber decisions, which do contain apparently clear-cut statements of principle. … [I]t may be unfortunate that the relevant sections did not prefer to release the matter before them to a Grand Chamber. It is not helpful for national courts seeking to take into account the jurisprudence of the European Court of Human Rights to have different section decisions pointing in directions inconsistent with Grand Chamber authority without clear explanation." (para.59)

Thus, is it safe to assume that in the case of Magyar Helsinki Bizottság v. Hungary, the Section  of the European Court to which the case was fist assigned, relinquished jurisdiction to the Grand Chamber not so much to the significance of the underlying case, but in response to the suggestion of the UK Supreme Court.
  
The Grand Chamber on the Interpretation of the Convention

The Grand Chamber defined the issues very narrowly in the case, asking whether “Article 10 of the Convention can be interpreted as guaranteeing the applicant NGO a right of access to information held by public authorities” (para. 71), or slightly more generally, whether “whether and to what extent [Article 10] embodies a right of access to State-held information” (para. 117).

The Grand Chamber acknowledged at the outset that Article 10 does not mention the right to seek information, as many similar human rights instruments do. The following general considerations guided the interpretation of Article 10 and are worth quoting at length (internal references omitted):

"119. …  in accordance with the Vienna Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn.
120. … the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions.
123. Account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties; the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part.
124. … The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.
125. … It can be seen from the case-law that the travaux préparatoires are not delimiting for the question whether a right may be considered to fall within the scope of an Article of the Convention if the existence of such a right was supported by the growing measure of common ground that had emerged in the given area."

The Grand Chamber was particularly mindful of the concern that its own case-law is inconsistent on access to information under Article 10:

"133. The fact that the Court has not previously articulated in its case-law the relationship between the Leander principles and the more recent developments described above does not mean that they are contradictory or inconsistent. The dictum that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” was, it appears, based on what may be considered a literal reading of Article 10. It was repeated in the plenary and Grand Chamber rulings in Guerra and Others, Gaskin and Roche (and also in Gillberg). However, whilst holding that Article 10 did not, in circumstances such as those at issue in Guerra and Others, Gaskin and Roche, confer on the individual a right of access to the information in question or embody an obligation on the Government to impart such information, the Court did not, however, exclude the existence of such a right for the individual or a corresponding obligation on the Government in other types of circumstance. The above-mentioned recent case-law (including Gillberg) may be viewed as illustrating the types of circumstance in which the Court has been prepared to recognise an individual right of access to State-held information." (emphasis added)

After a careful examination of international and foreign material, and with special attention to the judgment of the IACtHR in Claude Reyes v. Chile (para. 146) from 2006, the Grand Chamber was ready to conclude that “in response to the evolving convergence as to the standards of human rights protection to be achieved” (para. 154) it was time to clarify the scope of Article 10 for access to information.
  
The Scope of Access to Information under Article 10:

The scope of protection afforded to access to information under Article 10 is carefully defined by the Court. First, the Court insists on a case-by-case assessment of factors (such as the notion of public interest and the qualities of the applicant) in order to permit a careful judicial monitoring of the scope of the right. Although the uncompromising recognition of assess to information under Article 10 is a major advance in European human rights jurisprudence, the narrowness of the Court’s holding and the proximity of the relevant tests to the facts of each case should be borne in mind when celebrating this advance. These limitations follow from the fact that access to information is recognized as a precondition to freedom of expression, and is not a self-standing right under the Convention. The cautious approach of the Court is also explained by the concurring opinion of Judges Nussberger and Keller (esp. para. 2) and the dissenting opinion of Judge Spano who raised privacy concerns against the expansion of Article 10. Second, the Court was careful about the burden that providing access to information may impose on member states. As such the judgment of the Grand Chamber is a meticulously consolidated reading of the existing case-law without major surprises. This was also emphasized by the concurring opinion of Judges Sicilianos and Raimondi (para. 27).

The basic premise of the Court's position is that access to information is instrumental for the “practical and effective” protection of freedom of expression under Article 10: “the right of access to information may under no circumstances fall within the ambit of Article 10 of the Convention would lead to situations where the freedom to “receive and impart” information is impaired in such a manner and to such a degree that it would strike at the very substance of freedom of expression" (para. 155). The Court delineated the scope of protection by tying it to a notion of public interest in the public discourse of matters of public concern. In doing so the Court emphasized that the need to disclose state-held information “may exist where, inter alia, disclosure provides transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large.” (para. 161). The public interest test is worth recalling in full:

"162. The Court has emphasised that the definition of what might constitute a subject of public interest will depend on the circumstances of each case. The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. The public interest cannot be reduced to the public’s thirst for information about the private life of others, or to an audience’s wish for sensationalism or even voyeurism. In order to ascertain whether a publication relates to a subject of general importance, it is necessary to assess the publication as a whole, having regard to the context in which it appears.
163. In this connection, the privileged position accorded by the Court in its case-law to political speech and debate on questions of public interest is relevant. The rationale for allowing little scope under Article 10 § 2 of the Convention for restrictions on such expressions."

As is apparent from the formulation of the test, the Grand Chamber was mindful of the potential encroachment access to state-held information in the name of the public interest may impose on private life. This concern may well explain why the Court insisted on a context-specific, case-by-case determination of what qualifies as information in the public interest for the purposes of Article 10.

Note that the public interest test is further qualified by the nature of the applicant being a well-respected civil society organization. The Court used this opportunity to further explain what it means by watchdog organizations in the free speech context, emphasizing the instrumental nature of access to information for a robust public discourse and govern accountability in a constitutional democracy:

"167. The manner in which public watchdogs carry out their activities may have a significant impact on the proper functioning of a democratic society. It is in the interest of democratic society to enable the press to exercise its vital role of “public watchdog” in imparting information on matters of public concern, just as it is to enable NGOs scrutinising the State to do the same thing. Given that accurate information is a tool of their trade, it will often be necessary for persons and organisations exercising watchdog functions to gain access to information in order to perform their role of reporting on matters of public interest. Obstacles created in order to hinder access to information may result in those working in the media or related fields no longer being able to assume their “watchdog” role effectively, and their ability to provide accurate and reliable information may be adversely affected.
168. Thus, the Court considers that an important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public “watchdog”. This does not mean, however, that a right of access to information ought to apply exclusively to NGOs and the press. It reiterates that a high level of protection also extends to academic researchers and authors of literature on matters of public concern. …. [t]he function of bloggers and popular users of the social media may be also assimilated to that of “public watchdogs” in so far as the protection afforded by Article 10 is concerned."

This understanding of the role of watchdogs in the public discourse certainly applies under Article 10 outside the immediate context of access to information.

As for the burden imposed by access to information on member states under Article 10, the Court emphasized – in line with its previous case-law – that the government does not have an obligation to collect data or to actively impart information. The Court noted that “the fact that the information requested is ready and available ought to constitute an important criterion in the overall assessment” (para. 170).
            In applying these general principles to the case at hand, the Court found that the Hungarian authorities violated the Convention when they failed to assess the “potential public-interest character of the information sought” (para. 176). This inquiry into the “public-interest character” of the information sought follows from Article 10, “irrespective of whether public defenders could be qualified as “other persons performing public duties” under the relevant national law” (para. 177). In the limitation analysis. the Court demonstrated the application of this standard by pointing out that “the request for these names, although they constituted personal data, related predominantly to the conduct of professional activities in the context of public proceedings. In this sense, public defenders’ professional activities cannot be considered to be a private matter. Moreover, the information sought did not relate to the public defenders’ actions or decisions in connection with the carrying out of their tasks as legal representatives or consultations with their clients” (para. 194). Regarding the privacy concerns of public defenders, the Court noted that their names could easily be learned from other sources available to the public such as schedules of court hearings (para. 195).  
  
Conclusion

The significance of the judgment of the Grand Chamber in Magyar Helsinki Bizottsag v. Hungary cannot be underestimated. It consolidates for the first time the principles and premises of European human rights jurisprudence on access to information under Article 10. The Court tied access to information to freedom of expression and its role in providing for a robust public discourse in matters of public interest in a democracy. The scope of access to information is narrowly defined: it applies to state-held information, it ensures access in the public interest and privileges recipients who seek access to information in order to contribute to the public discourse in a watchdog capacity. The audience’s potential “wish for sensationalism or even voyeurism” is not reason to provide access to information under the Convention.

Second, the Grand Chamber provided important insights into the principles of interpreting the Convention where the text is silent. The starting point in making the protection of the Convention rights “practical and effective” remains the Vienna Convention together with the Court’s continuing concern to account for the evolution of the protection of human rights under similar regional and international instruments.

Third, the judgment has great political significance in the ongoing judicial dialogue between national courts and the European Court of Human Rights. While it may have been time for the Grand Chamber to consolidate its jurisprudence under Article 10, the UK Supreme Court’s call for action in this respect might well have served as a source of inspiration to take up a relevant case from another member state at the right time. The willingness of the Court to keep a watchful eye on developments in national courts should encourage human rights defenders not only to coordinate across borders in strategic cases but also to continue to draw attention to their victories and failures (!) in the European public discourse on human rights. Hopefully, next time Europeans will not have to wait ten years before the European minimum standard unquestionably reaches the level of protection afforded in the UN system and the Inter-American regime.

Tuesday, 22 November 2016

Conference on ECHR and Regional Implementation Challenges

On 8 and 9 December, the Council of Europe,  the Constitutional Court of the Republic of Lithuania, and the European Humanities University are co-organising a conference entitled 'Regional Challenges in Implementation of the European Convention on Human Rights'. The conference will take place at the premises of the Constitutional Court in Vilnius. This is the organisers' summary of the topics the conference will address:

'The conference brings together academics, members of the judiciary and practicing lawyers from across Europe to facilitate a timely discussion of the challenges and underlying causes of insufficient compliance with the jurisprudence of the European Court of Human Rights. The aim of the workshop is to examine common approaches and practices from different parts of Europe to the implementation and application of the Convention. The key question of the conference is whether the challenges to implementation of the Convention are country-specific, regional or European. The discussion will revolve around the following key issues:

* The relationship between implementation and perceived legitimacy of the European Court of Human Rights;
* Compliance, European consensus and the margin of appreciation; validity of regional consensus as a factor of interpretation of European standards of human rights protection;
* Challenges of implementation of the European Convention of Human Rights in situations of transition and recent transition.

The language of the Conference is English (no interpretation will be provided). The participation in the Conference is free of charge; however, the attendees are expected to cover their travel and accommodation expenses. For security reasons all attendees should be registered in advance. If you are interested in attending the Conference, please contact Assoc. Prof. Maxim Timofeev via maxim.timofeev @ ehu.lt.'

The full programme can be found here.

Friday, 18 November 2016

European Court Awarded Treaties of Nijmegen Medal

Today, the European Court of Human Rights is being awarded the Treaties of Nijmegen Medal 2016. The medal is awarded every two years to key actors committed to European development. It commemorates the signing of a number of treaties known as the Peace of Nijmegen which ended a number of conflicts between major European powers in 1678 and 1679. It was an early attempt to achieve peace on a European scale.

According to the organisers, "the European Court has been responsible for safeguarding human rights in Europe since 1959. It was the very first international legal institution to which individuals could complain about human rights violations, and which was empowered to deliver binding rulings on the European states. The primary function of the Court is to offer redress to individual victims whose rights have been breached. It raps the knuckles of states that impose degrading prison conditions, in the event of disappearance and torture during civil war, police violence, or politically motivated imprisonment. In addition, the Court tackles difficult questions relating to fundamental rights in today’s society, such as the rights of refugees and immigrants, data protection and discriminatory remarks made by politicians. The European Court of Human Rights plays a crucial role in the protection of human rights and will therefore be awarded with the 2016 Treaties of Nijmegen Medal."

Today, the medal is awared by Nijmegen's mayor, Mr Bruls, to the President of the Court, Judge Guido Raimondi. My colleague professor Janneke Gerards will deliver a special lecture at the occasion. Earlier winners of the medal were, Jacques Delors, Umberto Eco, and Neelie Kroes. Congratulations to the Court!

Monday, 14 November 2016

New Book on ECHR and Human Rights Theory

Long past are the days when the ECHR was only of interest to legal scholars. A recent book by researcher Alain Zysset, a Max Weber Fellow at the European University Institute (EUI) in Florence, Italy, with both a background in international politics and philosophy - in addition to law -  is a case in point. He has published the book 'The ECHR and Human Rights Theory. Reconciling the Moral and the Political Conceptions' with Routledge Publishers. Zysset is also a postdoctoral fellow in the Pluricourts project of the University of Oslo. This is the book's abstract:

'The European Convention of Human Rights (ECHR) has been relatively neglected in the field of normative human rights theory. This book aims to bridge the gap between human rights theory and the practice of the ECHR. In order to do so, it tests the two overarching approaches in human rights theory literature: the ethical and the political, against the practice of the ECHR ‘system’. The book also addresses the history of the ECHR and the European Court of Human Rights (ECtHR) as an international legal and political institution.

The book offers a democratic defence of the authority of the ECtHR. It illustrates how a conception of democracy – more specifically, the egalitarian argument for democracy developed by Thomas Christiano on the domestic level – can illuminate the reasoning of the Court, including the allocation of the margin of appreciation on a significant number of issues. Alain Zysset argues that the justification of the authority of the ECtHR – its prominent status in the domestic legal orders – reinforces the democratic process within States Parties, thereby consolidating our status as political equals in those legal and political orders.'

Friday, 4 November 2016

New Network on European Human Rights Implementation

A key new network has been put together over the past few months, by academics and civil society, to work towards better implementation of European Court of Human Rights judgments: the European Implementation Network. In the words of its founders, its mission is "to build and strengthen the ability of lawyers, NGOs, and communities to access every part of the Council of Europe that can contribute to better implementation of these judgments; to advocate for full implementation of particular cases; and to support more robust structures that facilitate implementation." This will be done by providing a virtual hub to bring NGOs together and to undertake advocacy for better implementation at the national level. It also aims to ensure better access to all branches of the Council of Europe that can positively affect implementation.

The network will be officially launched by way of a panel discussion on Friday 2 December 2016, at 16h30, at the premises of the European Court of Human Rights in Strasbourg. This is the official invitation: 

"The European Implementation Network (EIN) is a non-governmental organisation established to champion the implementation of judgments of the European Court of Human Rights. Partnering with national NGOs from across the Council of Europe, EIN serves as a bridge between Strasbourg and civil society working across the region to advocate for the full, effective and rapid implementation of judgments.

The EIN has worked as a project since 2014 and is now about to enter a new phase as a standalone entity in Strasbourg. The launch will feature a roundtable discussion that aims to encourage an exchange of views on implementation and to reflect on how compliance can be improved and speeded up.

Speakers include: 

Prof. Başak Çali, Co-founder of the European Implementation Network and Professor of International Law, Hertie School of Governance
Christos Giakoumopoulos, Director, Human Rights Directorate, Council of Europe
Judge Işil Karakaş, Vice-President, European Court of Human Rights
Prof. Philip Leach, Director, European Human Rights Advocacy Centre (Chair)
Nils Muižnieks, Commissioner for Human Rights, Council of Europe

A drinks reception will follow the panel discussion."

Registration can be done online here. The network's first newsletter can be found here. I wish the creators all the strength and perseverance to bring this very good initiative to fruition. In today's Europe, with human rights under pressure in so many places, this is all the more necessary.

Wednesday, 26 October 2016

Massive Open Online Course on the ECHR launched!

Dear ECHR Blog readers, it is my particular pleasure to announce that today, here at the Netherlands Institute of Human Rights (SIM) at Utrecht University, we are launching a Massive Open Online Course on the European Convention on Human Rights. The formal title is 'Human Rights for open Societies - An introduction into the ECHR' After having worked on this project for over a year together with my colleagues professor Janneke Gerards and dr Paulien de Morree, I am very happy to inform you that the course is now open for registration on the Coursera platform. You can watch a short introduction video to get an impression.

This is our University's official press release on the course: 

On November 14 Utrecht University will launch a new MOOC about ‘Human Rights for Open Societies – An Introduction to the European Convention on Human Rights’. This MOOC (Massive Open Online Course) will be offered on Coursera. Antoine Buyse, Professor of Human Rights and Janneke Gerards, Professor of Fundamental Rights Law, both at the Netherlands Institute of Human Rights (SIM) and connected to the strategic research theme Institutions for Open Societies of Utrecht University, will offer the participants an introduction to one of the world’s most intricate human rights systems: the European Convention on Human Rights. This human rights treaty is one of the most successful tools for protecting human dignity, and it is a crucial tool to achieving an open society. 




Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And often, minorities are excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it often is an uphill battle to work towards that ideal. 

The course will help participants equip themselves and learn more about what human rights are and how they work. They will learn when and how people can turn to the European Court of Human Rights to complain about human rights violations. And they will learn when and how the Court tries to solve many of the difficult human rights dilemmas of today. The course looks at, amongst others, the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. The rights of migrants,  refugees, and other vulnerable groups will also be addressed in this MOOC. Finally, the course will look into the question of whether it is possible to restrict rights and under what conditions. 

Is this a course for you?
This course is open to everyone interested in the protection of human rights and the linkages with open and democratic societies. 

Interested in participating? 
The MOOC ‘Human Rights for Open Societies – An Introduction to the European Convention on Human Rights’ will start on November 14 2016. 

Enroll here on Coursera: https://www.coursera.org/learn/humanrights . Enrollment is for free – participants only pay a fee if they want to obtain a certificate at the end of the course.

This course was developed by Antoine Buyse, Janneke Gerards and Paulien de Morree of Utrecht Law School.

About Utrecht University and the strategic theme Institutions for Open Societies at Utrecht University: Within the strategic theme Institutions for Open Societies, research is conducted on the formal and informal rules of human action. These institutions such as laws, customs, and the associated organizations and networks, enable or constrain the realization of an open, democratic and equitable society. They also determine a society’s ability to absorb shocks and generate sustainable prosperity. By obtaining a deeper understanding of their institutional underpinnings, through a combination of expertise from several disciplines, Utrecht University is contributing to the development of open and resilient societies around the globe.

Tuesday, 25 October 2016

Book on ECHR and Democratic Change in Central and Eastern Europe

Cambridge University Press has published a book edited by a current and a former judge of the European Court of Human Rights, Julia Motoc and Ineta Ziemele, entitled 'The Impact of the ECHR on Democratic Change in Central and Eastern Europe. Judicial Perspectives'. Judge Motoc is judge in respect of Romania at the Court and Ineta Ziemele is currently a judge in the Constitutional Court of Latvia. They have compiled an edited volume with a impressive lists of contributors, including many current and former judges of the Court: Dean Spielmann, Iulia Motoc, Luzius Wildhaber, Ledi Bianku, Alvina Gyulumyan, Davit Melkonyan, Khanlar Hajyev, Faris Vehabovic, Ksenija Turkovic, Jasna Omejec, Aleš Pejchal, Julia Laffranque, Károly Bárd, Mārtiņš Mits, Danutė Jočienė, Mirjana Lazarova-Trajkovska, Ilo Trajkovski, Nebojša B. Vučinić, Lech Garlicki, Ireneusz Kondak, Crina Kaufmann, Anatoly I. Kovler, Dragoljub Popović, Tanasie Marinković, Milan Blaško, Mihal Kučera, Jan Zobec, Ganna Yudkivska, Ineta Ziemele.

This is the book's abstract:

'High hopes were placed in the ability of the European Convention and the Court of Human Rights to help realise fundamental freedoms and civil and political rights in the post-communist countries. This book explores the effects of the Strasbourg human rights system on the domestic law, politics and reality of the new member States. With contributions by past and present judges of the European Court of Human Rights and assorted constitutional courts, this book provides an insider view of the relationship between Central and Eastern European states and the ECHR, and examines the fundamental role played by the ECHR in the process of democratisation, particularly the areas of the right to liberty, the right to propriety, freedom of expression, and minorities' rights.'

Monday, 24 October 2016

Call for Papers ECHR and EU Law

On 17 and 18 March 2017, the University of Nicosia on Cyprus is organising a conference entitled 'The Inter-relationship between the European Convention on Human Rights and European Union Law'. It is now inviting submissions through a call for papers. The conference coincides with the  Cypriot Chairmanship of the Committee of Ministers of the Council of Europe in the first half of 2017. This is the official announcement of the organisers:

"The University of Nicosia, Department of Law, under the auspices of the Cypriot Chairmanship of the Committee of Ministers of the Council of Europe (November 2016-May 2017) invite submissions for a two-day conference on The Inter-relationship between the European Convention on Human Rights and European Union Law to be held in the premises of the University of Nicosia on Friday and Saturday 17-18 March, 2017.

The conference will examine the various aspects of the relationship between the European Convention on Human Rights and European Union Law. These include, inter alia: 

- Negotiations and potential effect of the accession of the EU to the ECHR
- Application of the ECHR during the interpretation and implementation of EU law, either primary or secondary, by national courts, the Court of Justice, the EGC, or the ECtHR.
- The relationship between the Charter on Fundamental Rights and the ECHR

Interested scholars should email an abstract no longer than 750 words by December 12, 2016 to: emilianides.a at unic.ac.cy. Scholars whose abstract has been accepted will be notified no later than December 22, 2017. There are no fees to participate in this Conference. Participants are responsible for securing their own funding for travel and lodging.

Organising Committee:
Prof. Achilles C. Emilianides
Dr. Stergios Mitas  
Dr. Christos Papastylianos
Dr. Costas Stratilatis

Questions: please direct inquiries in connection with this Conference to Professor Achilles Emilianides: emilianides.a at unic.ac.cy . "

Friday, 21 October 2016

The Role of Human Dignity in ECHR Case-Law

Last week, I delivered a keynote speech at a multidisciplinary conference organised by the Ethics Institute here at Utrecht University. The conference was the closing event of a large project on human dignity as the foundation of human rights. My lecture went into the concept of "human dignity" in European Convention case-law. Please find the keynote text below, for those of you interested in the issue:

Dignified Law: The Role of Human Dignity in European Convention Case-Law
Antoine Buyse, keynote delivered on 11 October 2016, at Utrecht University

Very recently, the European Court of Human Rights in Strasbourg issued its judgment in the case of Yaroslav Belousov v. Russia. Yaroslav, a student of political science, had been one of many protesters against the fraudulent elections in 2012. He was arrested, so the judgment tells us, after chanting slogans and throwing a small yellow object towards the police. Amongst others, Mr Belousov complained about the ways in which he had been treated: during his trial he had been held in a glass cabin (transparency may not generally popular in Russia, but in this context it is) and a metal cage. He received very little medical treatment for his bad eye-sight and asthma. And he was many times moved from prison to the courtroom and vice versa in very cramped conditions in vans, during many hours. In the case and in line with its case-law, the Court held that “The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, his health and well-being are adequately secured” (para. 92).  

In the judgment, however, it only found that the constant moving of Mr Belousov in difficult and cramped constituted a violation of his human rights. As to the other issues, it held the following: “Nevertheless, taking into account the cumulative effect of those conditions, the Court does not consider that the conditions of the applicant’s detention, although far from adequate, reached the threshold of severity required to characterise the treatment as inhuman or degrading” (para. 98). The conditions were below a number of European standards, but not as bad as to constitute a human rights violation under Article 3 of the Convention.

So what rule does “human dignity” play here? Is the reference to it a standard incantation? A pedagogical warning to the state concerned ? Or does it mean more?

This case, to which I will return at the end my presentation, is an example of the surfacing of “human dignity”  in the practice of a human rights court. In my contribution tot his conference, I will focus on legal practice, on how “human dignity” features in the case-law of the European Court of Human Rights.

As professor Christopher McCrudden* has traced them, the uses of “human dignity” in law have multiplied, especially after World War II. Like a quickly spreading epidemic of words, human dignity was explicitly included in all of the major human rights declarations and treaties. All treaties? No, not entirely. One human rights treaty among the many created in the second half of the 20th century, was completely silent about human dignity: the European Convention on Human Rights and Fundamental Freedoms – often abbreviated to ECHR – adopted by Western European democracies in 1950. 

One will look in vain in the text of the Convention for the words “dignity” or “human dignity.” The preamble of the Treaty speaks of justice, peace, democracy and the rule of law. But not of dignity. All the more surprising maybe, as the Convention explicitly builds on the Universal Declaration of Human Rights. The Convention was envisaged as the first practical step in the enforcement of a selected number of rights of the Universal Declaration – often formulated in very similar ways. But where the Declaration refers several times to human dignity (“all human beings are born free and equal in dignity and rights” says its first Article), the European Convention’s drafters did not opt for grand statements of that kind.

So what explains this absence? Certainly not different philosophies about human rights than those of the drafters of the Universal Declaration – they partly knew each other, largely lived in the same socio-cultural context and equally perceived human rights protection as a necessary reaction to the barbarities of the Second World War. A former president of the European Court, Jean-Paul Costa, has suggested that the reason, rather, may be found in the intention to create a pragmatic, practice-oriented instrument.** To make sure that the ideals of the Universal Declaration would not be lost in space, or, more specifically, in the trenches of the Cold War, the European drafters created practical instruments such as a human rights court and binding obligations for states by way of a treaty. Pragmatics rather than dreams.

In any event, among practitioners and academics alike, this European Convention is widely seen as both the most successful, effective, and most-developed system of human rights protection in the world. Virtually all other treaties, which are without exception seen as less effective, firmly ground themselves in human dignity and do so explicitly. One almost wonders whether there is a reverse causality between explicitly acknowledging human dignity and effectively protecting it. First appearances may deceive, however.

The first time “dignity” appears in the constantly extended treaties of the European Convention system is as late as 2002. In Protocol No. 13 on the abolition of the death penalty, the text states that such abolition is essential for the full recognition of the inherent dignity of all human beings. This late mention of dignity in the European Convention treaty texts is telling in several ways. 

First off, apparently dignity had by 2002 entered the normal vocabulary of the European Convention system. Secondly, it is used here to support a distinctly regional, European normative achievement: the abolition of the death penalty. Obviously, the death penalty still exists in many countries across the globe and this new agreement is therefore reflective of a new-found European rather than a universal consensus. A specific European content to what human dignity means. As well as an idea of progress: the text of the Protocol talks about the “full recognition” of dignity, implying that the existence of the death penalty can no longer be co-existent with the idea of dignity. How different it was in the original text of the Convention, in 1950, when the death penalty was included as a formal exception to the right to life. That exception is still in the Convention, but has by now largely become a dead letter.

So is indeed the year 2002 the first time European human rights discovered human dignity? No, not at all. Some European treaties, such as the Convention’s sister treaty, the European Social Charter, do include dignity language and even a specific right to dignity at work. And also within the European Convention on Human Rights system, human dignity does play a role: not in the treaty text, but in the practice of the Court’s jurisprudence, its case-law. To date (a search I did in the case-law database halfway October 2016) 876 cases include a reference to human dignity. Sometimes because a victim of a human rights violation mentions or invokes it, but very often because the European Court itself uses it. In a case about transsexuals (Christine Goodwin v the UK) the Court even found “human dignity and human freedom” to be the “very essence”  of the Convention (para. 90). Now, these cases may be a small number on the total of tens of thousands of cases in the Court’s history, they are not at all “une quantité négligeable”. Thus, we can maybe compare the silence of the treaty about human dignity with Fawlty Towers’ “don’t mention the war”: by first being silent about it, it eventually surfaces all the time.

Before going into the appearances of dignity in this case-law itself, it may be useful to distinguish three roles that human rights may play: as norms, as tools, and as discourse. 

The first role will be most familiar to both law and ethics: human rights are norms. Norms that protect certain freedoms and entitlements of people and bind state behavior. These norms are open in the sense of not completely pinning down what states can or cannot do: in almost all cases, a measure of leeway is left to states as to practical implementation. Guidance, but no straight-jacket.

The second role of human rights is that they are tools. Tools for alleged victims of injustice to bring forward claims. In a very direct sense, in that rights such as free speech or the freedom assembly enable people to voice their views. But also because human rights protection systems offer avenues, both nationally and internationally to lodge these claims: the possibility to have a court look at your complaint and issue a binding decision on it, which the state then has to implement.

Finally, a third role for human rights is that they are discourse. They are a way of talking about or framing issues in society. Is a large degree of homelessness an issue of poverty, of social injustice, or also a violation of human rights? An increasing amount of issues has slowly but surely come to be talked about as challenges of human rights, leading some to talk of human rights inflation or even of the colonization by human rights of wider societal issues. What can be said, in any event, is that framing one’s claim as human rights gives more weight to that claim, connecting it to fundamental, legally recognised basic needs and interests of people.

Let me now turn to the actual usage of “human dignity” in the case-law of the Court itself. I will argue that the ways in which dignity appears in this case-law, even in a relatively tight-knit, coherent system such as the European human rights one, is quite differentiated. This differentiated usage of dignity is can be discerned in three dimensions:

(1) the specific rights to which it is mostly applied
(2) the way it differentiates according to the specific facts and context of a case
(3) the role it plays in the legal argument

As to the first, it is quite visible that the Court refers to dignity by far the most when it concerns so-called core rights as defined by the Court: Articles 2, 3, and 4 of the Convention – these are respectively the right to life, the prohibition of torture and inhuman and degrading treatment, and finally the prohibition of slavery and servitude. Article 3 specifically is very often applied in the context of human dignity reasoning, from the acceptability of prison conditions to certain forms of punishment. The three roles that human rights can take may help to explain this. Considering human rights as norms, many of these core rights are considered to be absolute and thus not warranting exceptions or tinkering by states (although the right to life has some exceptions). If one looks at human rights as tools, these core rights are seen as essential means for the exercise of other human rights. In addition, applicants before the European Court may invoke the human dignity argument to support their claim and give it more moral or even legal weight: human dignity is then used discursively, as a way to frame a claim. 

An example is the case of Mr Jalloh. He was arrested in Germany for possession of hard drugs. Upon his arrest, he quickly swallowed a little plastic bubble with the cocaine and denied the offense. As he refused to take a pill that would make him vomit so that the essential proof of his offense could be obtained, he was forcibly administered a special substance into his stomach through a tube in his nose which made him throw up the drugs. His made him severely ill for several days. Before the European Court he argued that the forcible insertion of the substance “had been aimed at intimidating and debasing him in disregard of his human dignity. The manner in which he had been forced to undergo a life‑threatening medical intervention had been violent, agonising and humiliating. He had been degraded to the point of having to vomit while being observed by several police officers. Being in police custody, he had found himself in a particularly vulnerable position,” so he argued. The Court agreed and held that the “authorities subjected the applicant to a grave interference with his physical and mental integrity against his will. (…) The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him (para. 82).

So, human dignity mostly features in case-law about core rights. The same Jalloh case shows, however, that – by connection – other rights may also be violated. The fact that the evidence used in his trial had been obtained through inhuman and degrading treatment also made his trial unfair – a violation of Article 6 of the European Convention.

The second dimension is the tailoring of dignity to context: whether a certain treatment offends human dignity is not a question of one-size-fits-all. Rather, the specifics of the case play an important role. This is especially visible in Article 3 again, the prohibition of torture and inhuman and degrading treatment. As a short explanation: this right is quite unique as the prohibition is absolute. There is no way for states to justify torture or inhuman treatment. Whereas for most other rights, a state can interfere with a right (e.g. fine you for severely offending your neighbour) but that does not automatically mean your freedom of expression is violated. Justifications are possible. For absolute prohibitions such as torture this is not the case. Therefore the defining questions are about the scope of the prohibition: what is torture and what not, what is degrading and what is not? Once something falls within the scope or definition it is absolutely forbidden. So how does the Court tailor the specific boundaries of the prohibition in practice? 

The clearest examples here are cases about treatment of people in detention. The Court has held many times that “in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.” (e.g. Selmouni v. France, para. 99), So unnecessary force applied to detainees violates both human dignity and simultaneously the actual prohibition of Article 3. The tailoring, as indicated, has to do with context. For when is a treatment debasing? This, according to the Court, depends on a multitude of factors, including “the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.” (Ibid., para. 100) Here, the Court thus includes subjective criteria (effects on the person) and individual characteristics (age, health condition, sex etc.). The treatment (chaining someone to a chair for hours) may be the same, but whether it is a human rights violations may depends on whether the person is a healthy young man or an older pregnant women with chronic pains, for example. Dignity here is thus not a general notion, but one personified and subjectivised by the specific situation and traits of the person at stake. Here the use of human rights as a nuanced norm plays a key role.

Looking at the case-law, we can thus conclude that the use of “human dignity” is nuanced and diverse. It is probably best to speak of what I would call “differentiated dignity”: the invocation and function of human dignity in the jurisprudence differs according to the context. 

Finally, the third dimension: the role “human dignity” plays in the legal argument. First, when one looks at human rights as a norm, dignity does not have a very specific content. As Chris McCrudden has argued, there is no clear and far-reaching agreement on a common substantive conception.* And we could add, wherever it does directly attach to a norm, such as the prohibition of degrading treatment, the concept of dignity does not add specific content to the issue at hand. Dignity does play a role as a tool and as discourse. As a tool, because it can be invoked on both sides of the Court room: an applicant can claim that her or his dignity was violated by the state (as in the detention cases), but the state in turn can also bring in the dignity argument, for example when it interfered with someone’s hate speech in order to protect the dignity of other groups in society. 

Dignity is also a tool of interpretation for the Court itself: it may help to sketch the wider context of the purpose of the European Convention. In international law the object and purpose of a treaty always matter to interpret specific provisions in a treaty. Once the Court had identified human dignity as one of the Convention’s underlying purposes, it could – in theory – invoke it as a guiding principle. However, practice shows that in this sense dignity offers very little decisive weight in legal argument. It may help to rhetorically support that in the balancing of interests one side should weigh in more heavily as human dignity is involved, but this is not often the key argument. So normatively, and I am not the first to argue this, the role of “dignity” is minor in the case-law. 

This leaves us with the usage of dignity in human rights as a form of discourse. It may serve rhetorical purposes that go beyond the specific human rights norm as such. One way in which this can be done, is what McCrudden* has called the institutional use of dignity: dignity talk can help to balance rights and other interests (as mentioned), dignity can be a discursive way to connect to international standards, and finally, dignity can be an argumentative tool to support the reading of new sub-norms in an existing norm (corporal punishment of children may thus be brought under the prohibition of degrading treatment by modern-day understandings, even if the original drafters of the Convention would not have imagined it). To these usages, let me add that – discursively -  “human dignity” may be a rhetorical linchpin between societal understandings of what is humane and what carries moral stigma on the one hand and the hard black-letter approach of law on the other. In the particular European context, the invocation of dignity by the Court also serves another discursive purpose: it re-connects the exceptionally silence of the European Convention on the issue of dignity, to the broader galaxy of human rights declarations and treaties in which dignity so prominently features (see also Costa on this **).

Thus, as I have hoped to show, dignity – like human rights more generally – can play a role in the application of human rights as norms, tools or discourse. Its very flexibility – or emptiness as some would say – on the normative side does not pre-empt its meaning as a tool or as a form of discourse. 

To conclude this excursion into the practice of the European Court, let me return to the Russian student, whose case was decided last week. What role did “human dignity” play in his case or, to be more precise, in the judgment of the European Court of Human Rights? As stated at the beginning, the Court held that detention conditions should be compatible with respect for human dignity. By way of explanation it added that "the manner and method of the execution of the measure do not subject him [the detainee] to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, his health and well-being are adequately secured" (para. 92).

Two things are notable here: (1) apparently dignity is a kind of threshold which is not automatically violated because someone is detained in the first place (the unavoidable level of inherent suffering) and (2) this threshold is not absolute or absolutely the same in all circumstances: the goals of dignity, health and well-being need to be assessed “given the practical demands of imprisonment.”  A certain leeway is thus given and the Court in effect balances the ideal and the possible in the grey zone between clearly inhuman or degrading treatment and permissible treatment. The prohibition of torture, degrading and inhuman treatment is absolute, but its precise boundaries may shift from case to case. 

Again, an example of pragmatics in the European human rights approach? What is notable, in any event, is that the invocation of dignity here seems to be more a reminder of what is at stake rather than a decisive trump card as such. However, just like the framing of human rights from a discursive point of view strengthens a claim to justice, a fortiori within human rights framing an issue as an affront to human dignity reinforces that even more. Where human rights is a rhetorical hammer, dignity may be the proverbial thunderbolt and lightning.

And this brings us back to former Court President Jean Paul Costa, who also emphasized this. His explanation is that the Court is not only deciding specific cases (in which dignity may not be the decisive tool) but also has a pedagogical role and in using dignity explicitly sends a signal to states on the importance of what is at stake.** Be that as it may, the uses of dignity in the Court’s case-law are still not as transparent as the glass cabin in which the Russian student was held.

* Christopher McCrudden, 'Human Dignity and Judicial Interpretation of Human Rights', The European Journal of International Law, vol. 19, no. 4 (2008) pp. 655-724.
** Jean-Paul Costa, 'Human Dignity in the Jurisprudence of the European Court of Human Rights', in: Christopher McCrudden (ed.), Understanding Human Dignity - Proceedings of the British Academy, vol. 192 (2013) pp. 393-402.