Thursday, 26 November 2020

ECHR Law Review Issue 2 is Now Available Online

The European Convention on Human Rights Law Review (ECHR Law Review) is a scholarly journal devoted exclusively to the Convention system. The second issue of the ECHR Law Review is now available online. It contains articles, book reviews, an interview and editorial note on such topical issues as the current pandemic, Court's authority and the rule of law backsliding, as well as more foundational topics concerning the execution of judgments, the argumentation before and review by the Court. Some articles are open access and others can be downloaded for free by following the instructions here

Contributors to this issue include the current president, a former judge and a former deputy registrar of the Strasbourg Court, and eminent and emerging scholars working on the Convention system. Here is the full list of contributions:
 
Editorial

Authors: Vassilis P Tzevelekos and Kanstantsin Dzehtsiarou
Normal as Usual? Human Rights in Times of covid-19

Interview

Authors: Mikael Rask Madsen and Robert Spano
 
Articles
 
 
Author: Conall Mallory
 
Author: Janneke Gerards
 
Author: Elif Erken
The Participation of Non-Governmental Organisations and National Human Rights Institutions in the Execution of Judgments of the Strasbourg Court
 
Book Reviews

Author: Michael O’Boyle
 
Author: Dimitrios Kagiaros
 
 
 


Wednesday, 25 November 2020

New Book on the European Court of Human Rights and Turkey's Kurdish Conflict

Dr Dilek Kurban, based at the Hertie School of Government in Berlin, has published the book Limits of Supranational Justice. The European Court of Human Rights and Turkey's Kurdish Conflict with Cambridge University Press. The monograph is a must read for any academic or legal practitioner at the Court and beyond to understand the relations between the European Court of Human Rights and Turkey on one of the most contentious issues. It is based on dr Kurban's PhD dissertation, defended at Maastricht University, and it won one of the Erasmus Research Prizes in the Netherlands, one of the most prestigious accolades for a PhD. This is the abstract:

'With its contextualized analysis of the European Court of Human Rights' (ECtHR) engagement in Turkey's Kurdish conflict since the early 1990s, Limits of Supranational Justice makes a much-needed contribution to scholarships on supranational courts and legal mobilization. Based on a socio-legal account of the efforts of Kurdish lawyers in mobilizing the ECtHR on behalf of abducted, executed, tortured and displaced civilians under emergency rule, and a doctrinal legal analysis of the ECtHR's jurisprudence in these cases, this book powerfully demonstrates the Strasbourg court's failure to end gross violations in the Kurdish region. It brings together legal, political, sociological and historical narratives, and highlights the factors enabling the perpetuation of state violence and political repression against the Kurds. The effectiveness of supranational courts can best be assessed in hard cases such as Turkey, and this book demonstrates the need for a reappraisal of current academic and jurisprudential approaches to authoritarian regimes.'

Tuesday, 24 November 2020

New Book on 'Hard Power' and the ECHR

Dr Peter Kempees has published the new book “Hard Power” and the European Convention on Human Rights with Brill Publishers. I had the pleasure of being on the reading committee of the dissertation of dr Kempees on which this book is based. It was successfully defended at Leiden University in 2019. Older readers may know Peter Kempees, working at the registry of the European Court, as the editor of the systematic guide to the case-law of the European Court, published in the 1990s and at the time one of the key works of reference. This is the abstract of his new monograph:

'The European Convention on Human Rights is now crucial to decisions to be taken by the military and their political leaders in ‘hard power’ situations – that is, classical international and non-international armed conflict, belligerent occupation, peacekeeping and peace-enforcing and anti-terrorism and anti-piracy operations, but also hybrid warfare, cyber-attack and targeted assassination. Guidance is needed, therefore, on how Convention law relates to these decisions. 

That guidance is precisely what this book aims to offer. It focuses primarily on States’ accountability under the Convention, but also shows that human rights law, used creatively, can actually help States achieve their objectives.'

Friday, 20 November 2020

Summer School “ECHR in Times of Crises”

TU Dresden and Leipzig University are organising the 2nd International Summer School "Human Rights in Theory and Practice" from September 5th to 10th, 2021 in Dresden.  The Summer School will focus on the topic of “The European Convention on Human Rights in Times of Crises” and will explore challenges and opportunities for the European Human Rights System arising out of situations of crisis. 

Themes such as emergency situations, populism, migration, and the role of economic, social and cultural rights in the context of crisis will be explored from an interdisciplinary perspective.

Speakers of the summer school include the Strasbourg Court Judge Anja Seibert-Fohr and other established scholars and practitioners working on the Convention system.

The Summer School is designed for advanced students of law, political science, international relations and similar fields. Prior knowledge about the European Human Rights System may be beneficial but is not required. The language of the Summer School will be English.

The programme is available here and the registration link is here. For more information you can visit the website of the summer school.

 

Wednesday, 18 November 2020

Guest Post: Admission of Evidence Obtained Through Ill-treatment of a Third Party by Private Individuals: the Case of Ćwik v. Poland

By Matteo Mastracci, PhD researcher at Koç University


On 5 November 2020, the European Court of Human Rights issued its judgment in the case of Ćwik v. Poland. The question, which until now had never been addressed by the Court, was whether the exclusionary rule disqualifying evidence obtained through ill-treatment (also known as ‘torture evidence’) could be applied even when inflicted by private individuals, in the absence of involvement or acquiescence of state officials. The Court, in a pioneering ruling, found a violation of Article 6 of the Convention by confirming that the use in criminal proceedings of evidence obtained in breach of Article 3 renders the proceedings as a whole automatically unfair. Indeed, the Court ruled that admission into the trial of torture evidence is always excluded, irrespective of its classification.

The facts of the case

In 2008, the applicant, a Polish national, was sentenced to 12 years in prison for international drug trafficking. His conviction by Polish authorities was based on various pieces of evidence including a transcript of utterances recorded on an audio cassette secured by the police in the course of a search and seizure operation.

The content of the audio-recorded material, in particular, consisted of a third-party statement resulting from a criminal episode of kidnapping and torture inflicted by private individuals, members of a criminal gang part of “settling of accounts between gangsters”.

In 2010, the applicant lodged an application against Poland with the European Court of Human Rights alleging a violation of his right to a fair trial under Article 6 § 1 of the Convention. He contended that national courts should not have admitted into evidence the transcript of a recorded conversation obtained through ill-treatment of a third party inflicted by members of a criminal gang. A decade later the Court ruled on this rather unique case.

The Court’s judgment

The State’s positive obligations under Article 3

On a preliminary note, the Court recalled the importance of the principles developed under Article 3 of the Convention for its assessment under Article 6 in this case. The absolute and non-derogatory nature of the prohibition of torture and inhuman or degrading treatment or punishment entails the State’s positive obligation to guarantee to all those who fall within its jurisdiction the protection of the right referred to in Article 3. This specific obligation, on the one hand, cannot be limited solely to cases of ill-treatment inflicted by state actors (M.C. v. Bulgaria, § 151), but on the other hand, it may have a different scope depending on whether the violence is perpetrated by private individuals or state agents (Beganović v. Croatia, § 69).

In any event, as the extensive case-law of the Court on private contexts has shown, the prohibition of torture and inhuman or degrading treatment or punishment protects every person regardless of the source of violence that has reached a minimum level of severity. Since Article 3 of the Convention is an absolute right, and thus it cannot be weighed against other rights (see the Grand Chamber’s finding in Gäfgen v. Germany, § 176), the right prevails, among other things, over the securing of a criminal conviction. Finally, the Court recalled the General Comment no. 20 of the Human Rights Committee on Article 7 of the International Covenant on Civil and Political Rights (ICCPR) establishing the State’s duty to afford everyone protection through legislative and other measures against the acts prohibited by Article 7, which includes people acting in a private capacity.

The unfairness of the proceeding as a whole under Article 6

Having clarified that Article 6 ECHR does not prescribe rules on the admissibility of evidence which are entirely left to the domestic legislators, the Court stepped into the core of the case. The main question was whether the proceeding as a whole, including how the evidence was obtained, was fair. For evaluating the fairness of the proceedings, several elements might be examined, including the decisiveness of the evidence on the outcome of the case. Be that as it may, the evidence obtained in violation of Article 3 (one of the cores and absolute rights under the Convention) would, nonetheless, raise serious issues even if its admission was not decisive for the outcome of the proceeding.

By recalling the case of Othman (Abu Qatada) v. the United Kingdom, where it has been ruled that “no legal system based upon the rule of law” can permit the admission of evidence achieved “by such barbaric practice as torture”, the Court took a clear stand against the admission of torture evidence for both legal and moral reasons. The Court, then, reiterated its settled case-law according to which the admission of statements obtained through ill-treatment by public officials in breach of Article 3 renders the proceedings as a whole unfair regardless of the decisiveness of the evidence in securing the conviction of the accused. Furthermore, the Court reaffirmed that those principles are equally applicable in the case of third party victims.

Torture evidence inflicted by private individuals

The real novelty of the legal question in the case at hand was whether the exclusionary rule for the admission in national court proceedings of the so-called tortured evidence was equally applicable in the case of ill-treatment inflicted to third party victims by private individuals. For the very first time in a Strasbourg case, neither the defendant nor the state officials were directly involved in criminal misconduct. After reiterating that the evidence admitted to trial leaves no doubt that the treatment falls within the scope of Article 3 (indeed, the national authorities themselves classified the fact as “torture” or “assault”), the Court confirmed the existence of the State’s positive obligation in this respect.

Because the evidence obtained in violation of Article 3, regardless of its probative value and its decisiveness in securing the conviction of the accused, renders the proceeding as a whole automatically unfair, the Court applied this general principle to the case. Indeed, the Court found, by five votes to two, a violation of Article 6 § 1 of the Convention since the exclusionary rule disqualifying evidence contra Article 3 was equally applicable to the admission of torture evidence where private individuals had inflicted ill-treatment, irrespective of its classification.

Joint dissenting opinion of judges Wojtyczek and Pejchal

As an introductory remark, the two dissenting judges argued that in their understanding of many external legal sources it becomes clear that ill-treatment committed by a public official or other person acting in an official capacity is fundamentally different from that of private individuals. They noted that, inter alia, the wording of Article 1 § 1 of the Convention against Torture, was a deliberate choice of the drafters aware of the diversity between the two situations: “a breach of the law is always much more serious when committed by public officials because it erodes the State and corrodes the rule of law”. Also, they challenged the Court’s underreckoning of both the principles of free legislation on evidence in judicial proceedings and free assessment of evidence inherent to the national authorities’ domain. The latter they considered to be part of the modern criminal systems of continental Europe.

In any event, the sharpest criticism introduced by judges Wojtyczek and Pejchal was directed against the use by the Court of the analogy discourse in its legal reasoning. Starting from the assumption that analogy requires a thorough explanation of the reasons why a similarity can be drawn between different situations, they concluded that the Court failed to provide plausible arguments explaining the similarity between ill-treatment by state officials or private individuals. Conversely, they claimed that similarity could not be traced for, at least, three arguments: the protection of a trial’s integrity, the safeguarding of the rule of law, and the consequences stemming from the applicant’s right to remain silent and not to incriminate himself. Thus, the dissenting judges came to the conclusion that the Court’s reasoning was somewhat based upon an abusive reference to the analogy where judicial fiat ended by replacing the rule of law.

Comment

The exclusion of evidence in international human rights law, as noted by Zeegers, has often been based on the use of many vague standards such as ‘fairness’, ‘fundamental principles of justice’, or ‘shocks to the conscience of the court’. In this respect, Currie spoke of an area that is still largely grey. At the same time, the Court’s historical approach on the admissibility of evidence has been very cautious and reluctant to interfere with the prerogatives left to the domestic authorities in purely procedural matters. Indeed, from the very first ruling, Schenk v. Switzerland, the Court has developed an argumentative methodology that has remained substantially unchanged to date. Article 6 ECHR does not establish any rules on the admissibility of evidence as the matter is essentially dependent on domestic legislation. Nonetheless, the Court is always called to examine whether evidence has been presented in such a manner as to guarantee a fair trial. Thus, the way in which evidence is obtained under domestic rules and procedures may, in some exceptional circumstances, render the proceedings as a whole unfair, thereby allowing the Court to intervene successfully and holding a national court judgment contrary to the ECHR.

More crucially, then, the Court while reaffirming the ipso facto unreliability of evidence obtained in violation of Article 3 ECHR (as in Othman v. the United Kingdom), has extended the scope of application of the exclusionary rule. In doing so, contrary to what was argued by the dissenting judges, the Court does not seem to have employed a mere analogy tool but rather a teleological interpretation of the rights in the Convention. The ‘absolute’ prohibition of ill-treatment renders the proceedings as a whole automatically unfair when the evidence gathered is contrary to Article 3 of the Convention. Furthermore, this occurs regardless of whether such ill-treatment is inflicted by a public official or by a private individual. Torture evidence is, thus, a priori excluded not only to protect the integrity of the process but, also and above all, to preserve the rule of law itself as ‘no legal system based upon the rule of law can countenance of evidence obtained by such a barbaric practice as torture’ (Othman v. the United Kingdom, § 264).

Tuesday, 17 November 2020

New Book on Law, Democracy and the ECtHR

Rory O'Connell (Ulster University) has published a new monograph entitled Law, Democracy and the European Court of Human Rights with Cambridge University Press. O'Connell is an esteemed colleague over at the Transitional Justice Institute in Belfast - where I had the pleasure of being a guest researcher in the past - is an expert on the intersection of democracy and the ECHR. This is the book's abstract:

'Law, Democracy and the European Court of Human Rights examines the political rights jurisprudence of the European Court of Human Rights. It discusses how the Court supports a liberal representative and substantive model of democracy, and outlines the potential for the Court to interpret the Convention so as to support more deliberative, participatory and inclusive democratic practices. The book commences with an overview of different theories of democracy and then discusses the origins of the Council of Europe and the Convention and presents the basic principles on the interpretation and application of the Convention. Subsequent chapters explore issues around free expression, free assembly and association, the scope of the electoral rights, the right to vote, the right to run for election and issues about electoral systems. Issues discussed include rights relating to referendums, voting rights for prisoners and non-nationals, trade union rights and freedom of information.
  • Discusses the European Convention on Human Rights in the context of democratic theories and will appeal to those interested not just in the black letter of the European Convention law but also wider theoretical debates
  • Features a detailed presentation of case law on political and electoral rights that will provide readers with an in-depth understanding of multiple issues relating to the political process as seen through the lens of the European Convention on Human Rights
  • Discusses the potential for more deliberative, participatory and inclusive models of democracy'

Thursday, 12 November 2020

New Book on Positive Duties to Mobilise Criminal Law under the ECHR

Laurens Lavrysen (Ghent University) and Natasa Mavronicola (Birmingham University) have co-edited the new book Coercive Human Rights.Positive Duties to Mobilise the Criminal Law under the ECHR with Hart Publishing. This is the abstract:

'Traditionally, human rights have protected those facing the sharp edge of the criminal justice system. But over time human rights law has become increasingly infused with duties to mobilise criminal law towards protection and redress for violation of rights. These developments give rise to a whole host of questions concerning the precise parameters of coercive human rights, the rationale(s) that underpin them, and their effects and implications for victims, perpetrators, domestic legal systems, and for the theory and practice of human rights and criminal justice. This collection addresses these questions with a focus on the rich jurisprudence of the European Court of Human Rights (ECtHR). 

The collection explores four interlocking themes surrounding the issue of coercive human rights: 

First, the key threads in the doctrine of the ECtHR on duties to mobilise the criminal law as a means of delivering human rights protection.

Secondly, the factors that contribute to a readiness to demand coercive measures, including discrimination and vulnerability, and other key justificatory reasoning shaping the development of coercive human rights. 

Thirdly, the most pressing challenges for the ECtHR's coercive duties doctrine, including:

- how it relates to theories and rationales of criminalisation and criminal punishment; 
- its implications for the fundamental tenets of human rights law itself;
- its relationship to transitional justice objectives; and 
- how (far) it coheres with the imperative of effective protection for persons in precarious or vulnerable situations.

Fourthly, the (prospective) evolution of the coercive human rights doctrine and its application within national jurisdictions.'

Wednesday, 11 November 2020

EYHR Call for Contributions: Human Rights in Times of a Pandemic

The European Yearbook on Human Rights (EYHR) has issued a call for contributions for 2021 with a special focus on Human Rights in Times of a Pandemic. Below is the call for contributions as presented by the EYHR:


Large parts of 2020 have been marked by an unprecedented global health crisis with economic, social and humanitarian dimensions that resulted in a severe human rights impact. COVID-19 exposed the weaknesses of public health care systems and the access thereto, prevailing structural inequalities and the fragility of the rule of law in times of emergency. Hate speech, fake news, the targeting of vulnerable groups, nationalism and populism spread alongside the virus and pave the way for the adoption of repressive measures for purposes unrelated to the pandemic. Human Rights appeared as afterthoughts rather than as guiding principles in the political strategies responding to the global pandemic.

The 2021 edition is therefore dedicated to the impact the global pandemic had on human rights protection in Europe and related submissions are welcome. In particular, we encourage submissions on responses by the EU, the CoE and the OSCE to the pandemic from a human rights perspective.

Authors will be invited to submit full contributions based on an abstract (max 500 words) that should be send by 11 December 2020. Abstracts should be submitted with a short bio to lisa.heschl@uni-graz.at. The deadline for submitting the manuscript is end of March 2021.

The Yearbook is edited by representatives of the three major Austrian human rights research, training and teaching institutions – the European Training and Research Centre for Human Rights and Democracy of the University of Graz; the Austrian Human Rights Institute of the University of Salzburg and the Ludwig Boltzmann Institute of Human Rights, Vienna – and the Global Campus of Human Rights, Venice. It is published by Intersentia and all contributions are subject to a double-blind review process.



Thursday, 5 November 2020

Shifting Centres of Gravity in Human Rights Protection Now in Paperback

It is my pleasure to announce that the book professor Oddný Mjöll Arnardóttir (University of Iceland) and myself (Utrecht University) co-edited a few years ago, Shifting Centres of Gravity in Human Rights Protection. RethinkingRelations between the ECHR, EU, and National Legal Orders, has now been published in paperback! It focuses on what we then dubbed the shifting gravities of the protection of human rights in the triangle: European Union, European Convention on Human Rights, and national jurisdictions. It includes contributions from a wide range of authors who are experts on one or several of the interlinkages in this human rights triangle. This is the abstract:

'The protection of human rights in Europe is currently at a crossroads. There are competing processes which push and pull the centre of gravity of this protection between the ECHR system in Strasbourg, the EU system in Luxemburg and Brussels, and the national protection of human rights.

This book brings together researchers from the fields of international human rights law, EU law and constitutional law to reflect on the tug-of-war over the positioning of the centre of gravity of human rights protection in Europe. It addresses both the position of the Convention system vis-à-vis the Contracting States, and its positioning with respect to fundamental rights protection in the European Union. The first part of the book focuses on interactions in this triangle from an institutional and constitutional point of view and reflects on how the key actors are trying to define their relationship with one another in a never-ending process. Having thus set the scene, the second part takes a critical look at the tools that have been developed at European level for navigating these complex relationships, in order to identify whether they are capable of responding effectively to the complexities of emerging realities in the triangular relationship between the EHCR, EU law and national law.'

Wednesday, 4 November 2020

70 Years ECHR Today

Today, it is exactly 70 years ago that a small group of European states adopted, after relatively fast negotiations, a very special document that is now shortly known as the ECHR. In the photo, one can see the Ministers sitting together in the Palazzo Barberini in Rome for the formal meeting of adoption of the Convention. In the seven decades since, not only has Europe completely changed, so too has the number of state parties, the number of substantive rights, the exact process of supervision, the 'socialisation' of the Convention in domestic jurisdictions, and more generally the visibility of the ECHR. What has remained is the still very special idea that people should have their basic rights protected and should have an avenue to have violations redressed, if need be beyond the national level level, guarded by an international court that can issue binding judgments.

With a special meeting of the Committee of Ministers in Athens today (as Greece is currently chairing the Committee) and a number of academic and other events, including a big online conference at Leuven University, this special day is marked and shows the resilience of an ever-changing mechanism of human rights protection. Even in the light of backsliding of democracy. Even in the light over shrinking civic space. Even in the light of a quickly shifting geopolitical context, as the enduring uncertainty about the US selections also shows today. Far beyond the dozen of men sitting around that table in Rome, the Convention is now truly a living instrument, carried by countless women, men, children, stateless people, judges, lawyers, civil society organisations and countless others beyond the diplomats in 1950. 

As editors of the ECHR Blog, we wish the ECHR many more years of remaining a key bulwark of protection against human rights violations. Forward we go!