Wednesday, 18 September 2019

MOOC on ECHR Open for Participation Again

This month, the newest run of our Massive Open Online Course (MOOC) on the ECHR 'Human Rights for Open Societies' is open for participation again (and a next edition will run from November onwards for which you can register already). Join the more than 16,000 students from across the globe interested in the ECHR system and human rights! For more information see our teaser video here:
Our course covers both the system and general principles of the European Convention as well as a range of specific topics connected to open societies: the linkages between the ECHR and democracy, the issues of non-discrimination and vulnerable groups, and freedom of expression and assembly. Or, as one of our participants stated: 

"By giving concrete examples, the course is able to explain, even simplify, complex (legal) concepts and cases. I strongly recommend this course for everyone wishing to have basic knowledge on how the ECHR system works."

Tuesday, 20 August 2019

Updated Case-Law Guide on Article 1 ECHR

The Court has now made an updated version of its case-law guide on Article 1 ECHR available on its website. The Convention provision, as is well-known, provides that states "shall secure to everyone within their jurisdiction" the rights in the Convention. The case-law guide on this obligation to respect human rights specifically goes into the very contested concepts of jurisdiction and imputability, both notions that have spawned virtual bookshelves of academic literature. All case-law guides are available on the Court's website and now also include a number of translations into Chinese, including on the right to free elections, fair trial, the prohibition of forced labour and the right to liberty.

Wednesday, 14 August 2019

New ECHR Readings

Please find below a number of new ECHR-related readings for Summer reading:

* Stephen Skinner, Lethal Force, the Right to Life and the ECHR. Narratives of Death and Democracy (Bloomsbury Professional; book):

'In its case law on the use of lethal and potentially lethal force, the European Court of Human Rights declares a fundamental connection between the right to life in Article 2 of the European Convention on Human Rights and democratic society. This book discusses how that connection can be understood by using narrative theory to explore Article 2 law's specificities and its deeper historical, social and political significance. Focusing on the domestic policing and law enforcement context, the book draws on an extensive analysis of case law from 1995 to 2017. It shows how the connection with democratic society in Article 2's substantive and procedural dimensions underlines the right to life's problematic duality, as an expression of a basic value demanding a high level of protection and a contextually limited provision allowing states leeway in the use of force. Emphasising the need to identify clear standards in the interpretation and application of the right to life, the book argues that Article 2 law's narrative dimensions bring to light its core purposes and values. These are to extract meaning from pain and death, ground democratic society's foundational distinction between acceptable force and unacceptable violence, and indicate democratic society's essential attributes as a restrained, responsible and reflective system.'

* Ramute Remezaite, 'Challenging the Unconditional: Partial Compliance with ECtHR Judgments in the South Caucasus States', Israel Law Review, Volume 52, Issue 2 (2019) pp. 169-195:

'The European human rights system has long been seen as one of the greatest European achievements, with its European Court of Human Rights (ECtHR) as the world's leading human rights court. Current turbulent times, however, pose serious challenges to the European system, which is increasingly being contested by the deepening ‘implementation crisis’. The absolute obligation of member states of the Council of Europe (CoE) to abide by ECtHR judgments under Article 46 of the European Convention on Human Rights has been increasingly compromised by the selective approach of states, often resulting in minimal, dilatory, lengthy or even contested compliance with ECtHR judgments. As the implementation backlog has grown largely after the accession to the CoE of the newly emerged states, as aspiring democracies, in the late 1990s and early 2000s following the collapse of the Soviet Union, this article analyses the compliance behaviour of these states by looking at the South Caucasus states: Armenia, Azerbaijan and Georgia. The research findings suggest that partial compliance is a very likely form of compliance in the South Caucasus states as democratising states, and that some of the factors that explain such behaviour discussed in the article may be distinctive of states that joined the CoE as emerging democracies after the collapse of the Soviet Union. These states continue to display various vulnerabilities in the areas of human rights, the rule of law and democracy. This, in turn, has serious implications for the whole European human rights system and its ability to ensure that states’ commitments to the CoE are duly respected in the longer term.'

* Manon Julicher, Marina Henriques, Aina Amat Blai, and Pasquale Policastro, ‘Protection of the EU Charter for Private Legal Entities and Public Authorities? The Personal Scope of Fundamental Rights within Europe Compared’, Utrecht Law Review, volume 15, no. 1, pp. 1-25 (2019).

'The personal scope of the Charter of Fundamental Rights of the European Union (the Charter) is an area that still needs to be defined by the Court of Justice of the European Union (CJEU). The issue surrounding the personal scope entails the question of who can claim the protection of fundamental rights. A particularly controversial matter has proved to be the question whether, and if so under what circumstances, private legal entities and public authorities can invoke fundamental rights. This article aims to provide a detailed examination of the ‘landscape’ the CJEU must take into account when dealing with the personal scope of the Charter in the future. Firstly, this landscape is made up of the background and objectives of the EU and the European Convention on Human Rights (ECHR) legal systems. Secondly, it is shaped by the personal scope application of the Charter as interpreted by the CJEU so far, and the personal scope application of the ECHR as interpreted by the European Court of Human Rights (ECtHR). Finally, the application by Member State courts of fundamental rights, via the Charter, ECHR and constitutional rights, forms an element in this landscape. An examination of these aspects will provide answers to the question of how the three main players on the European fundamental rights stage – the CJEU, the ECtHR and the national courts – have applied the personal scope of their fundamental rights up to now. This also encompasses answers to the question of how these applications relate to the different background and objectives of the ECHR and the EU legal systems. These answers will provide the CJEU with tools to deliver well-informed rulings on the personal scope of Charter provisions in the future.'

* Antal Berkes, ‘Concurrent Applications Before the European Court of Human Rights: Coordinated Settlement of Massive Litigation From Separatist Areas’, American University International Law Review, vol. 34, issue 1 (2019) pp. 1-88:

'“Concurrent applications” are defined as applications filed with the European Court of Human Rights (ECtHR) by several individuals and/or a State or States concerning the same factual context, and directed against one or several States, while a substantially analogous matter has already been submitted to one or more other procedures of international investigation or settlement. The present paper submits that the settlement of concurrent applications from separatist areas is feasible through the strategic use of existing procedural tools of the ECtHR without introducing a separate mechanism or further constitutionalizing the Convention to the detriment of individual justice. The Court should settle such concurrent applications in a coordinated way, taking into account the interconnected legal and factual background as well as procedural and substantive law questions of concurrent cases in individual procedures. Each case having its own factual specificities, the broader context and legal background make the concurrent applications interconnected.'

* Analie Frese and Hendrik Palmer Olsen, ‘Citing Case Law: A Comparative Study of Legal Textbooks on European Human Rights Law’, European Journal of Legal Studies, volume 11, issue 1 (2019, Open Access):

'Recent years have seen increased interest in data-driven methods in legal research. Technologies provide new automated alternatives to traditional doctrinal approaches, which rely on manual information retrieval. In this article, we address one aspect of this development. On the basis of a citation network containing judgments on Article 14 of the European Convention of Human Rights, we identify which cases are most frequently cited and explicitly used in the legal argumentation of the European Court of Human Rights. We subsequently compare our findings with presentations of Article 14 in German, French and British textbooks. We aim to demonstrate that 1) network analysis can provide relevant input to legal analysis by relying on objective measures of case importance and 2) scholarship relying on traditional doctrinal methods is more dependent on the authors’ subjective outlook than necessary.'

* Ronan Ó Fathaigh, ‘The Chilling Effect of Turkey’s Article 301 Insult Law’, European Human Rights Law Review, issue 3 (2019) pp. 298-308:

'This article discusses how the approach of the European Court of Human Rights has evolved in seeking to protect freedom of expression from the chilling effect of Turkey’s controversial Article 301 insult law. The article reveals the early reluctance within the Court in finding that the law’s provisions were incompatible with freedom of expression, and yet, the analysis now demonstrates how the Court’s concern for the chilling effect has led the Court to two adopt notable approaches: first, the Court permitting applicants to argue that the law, in and of itself, violates the European Convention on Human Rights, even where an applicant has not been convicted, nor even prosecuted under the law; and second, the Court’s application of its rarely-used competence under Article 46 of the European Convention, finding that amending Article 301 would “constitute an appropriate form of execution” of the Court’s judgment.'

* Ronan Ó Fathaigh and Dirk Voorhoof, ‘Article 10 ECHR and Expressive Conduct’, Communications Law, vol. 24, issue 2 (2019) pp. 62-73:

'The European Court of Human Rights has recently delivered a series of judgments finding violations of the right to freedom of expression over convictions for engaging in expressive conduct. The purpose of this article is to discuss the European Court’s recent case law on expressive conduct under Article 10 of the European Convention on Human Rights, and in particular to assess in what circumstances, if any, domestic courts may impose prison sentences, even if suspended, on individuals engaging in peaceful, but provocative and offensive expression.'


'In this chapter, we propose two different methods to identify what we call polymorph principles in the practice of the European Court of Human Rights, i.e. principles of law that are not directly related to the interpretation of one or few articles in the convention, but are applicable to a case independent of its substantial content. Examples of these principles could be interest rates when states pay reparations, the quality of evidence or the relation between the ECtHR and the contracting states.

Since these transverse precedents are not easily identifiable in the ECtHR’s own database and since they are only occasionally taken under direct treatment in textbooks, we propose two methods to extract them from the more than 17.000 judgments that comprise the practice of the ECtHR. We use the citations between judgments to identify patterns where a precedent is cited by many different types of cases, indicating that the precedent is relevant no matter what article constitute the core of the case.

We conclude that the two different methods, both building directly on earlier research in automatic identification of case content based on citations to other cases and convention articles, yield satisfying results and provides another angle of entrance to the practice of the ECtHR, especially when combined to remove the largest possible amount of false positives.'

Monday, 12 August 2019

Book on Principled Resistance to ECtHR Judgments

A bit over two years ago, professor Marten Breuer of the University of Konstanz organised a great expert conference on the issue of states and their domestic courts resisting in various more or less principled ways the judgments of the European Court of Human Rights. He has now published an edited volume on the topic with Springer, entitled Principled Resistance to ECtHR Judgments - A New Paradigm?. As with the conference, the great asset of the book is that it includes both a set of detailed country case studies, including on Russia, Germany, the United Kingdom and Italy among others, as well as more cross-cutting chapters on the notion of 'principled resistance', its sociological and institutional consequences, the role of the Venice Commission and the issue of national (legal) identity. Well worth a read not just for those interested in the broader backlash-against-international-courts literature, but also for those wanting to look beyond ideological and political debates and more interested in what domestic courts actually do, in detail. This is the summary:

'The book analyses the position of the ECtHR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECtHR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECtHR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept  - 'principled resistance' - to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind 'principled resistance' shows enough commonalities in order to qualify such incidents as expression of a 'new paradigm'.'

Many congrats, Marten!

Friday, 5 July 2019

Information on Involvement of Civil Society and NHRIs in Execution of Judgments Phase

While in law schools we tend to focus ourselves and our students on the judgments of the Court (and so do many practitioners), a crucial phase, that of implementation, of course only starts after a judgment has been delivered. In the ECHR system, the Committee of Ministers is tasked with the supervision of the execution of judgments. It is supported in that role by the Council of Europe's Department for the Execution of Judgments. Since 'ears and eyes' on the ground are often very useful to provide context and addition information, this post-judgment phase allows for a degree of involvement of civl society nad national human rights institutions (NHRIs). The Department has now launched a special web page which gives an overview of how to do this. Since this information was previously not easily available, this is a very useful resource, which has come about at the request of civil society itself. The page includes an Information Note on best practices of how and when to address the Committee of Ministers. It also includes a useful flowchart of the timeline as well as the possibility to subscribe to an RSS feed to remain updated on relevant cases. Thus, the website reflects an important improvement in terms of information and accessibility, although additions would still be useful, according to the European Implementation Network.

And a small note: this is the 1001st post on this ECHR blog since its inception!

Monday, 1 July 2019

CoE Book on Individual Application under the ECHR

The President of the European Court of Human Rights, Linos-Alexandra Sicilianos, and Maria-Andriani Kostopoulou, a lawyer at the Greek Court of Cassation, have co-authored a new concise book (180 pages), entitled The individual application under the European Convention on Human Rights. It has just been published with the Council of Europe. This is the publisher's abstract:

'An indispensable practical guide for any potential applicant and any legal professional.

This book, which is a practical guide aimed at both professional lawyers and potential applicants, clearly and comprehensively describes and analyses the main stages in the processing of an application before the organs of the European Convention on Human Rights.

Detailed descriptions are provided of the Convention system, the Rules of the European Court of Human Rights and the procedures which the Court has developed to expedite and optimise case processing.

Crafted by two specialists on the Convention, Linos-Alexandre Sicilianos, the current President of the European Court of Human Rights, and Maria-Andriani Kostopoulou, a lawyer at the Greek Court of Cassation, the book does not merely explain how to prepare and lodge an application, in particular as regards the formal requirements and admissibility criteria; it also presents a detailed assessment of a case by the various formations of the Court, covering all stages right through to the conclusion of proceedings. Finally, having analysed the judicial stage, the book goes on to describe the procedure for supervision of the execution of judgments before the Committee of Ministers of the Council of Europe.'

Friday, 28 June 2019

Miscellaneous News from the Court and the Council of Europe

A number of developments to note at the Court and the Council of Europe this time. This week, the Parliamentary Assembly elected two new judges to the European Court of Human Rights. In respect of Germany, Anja Seibert-Fohr, was elected. A well-known figure in the human rights field, she is currently professor of public law, international law and human rights law in Heidelberg and until last year was a member of the United Nations Human Rights Committee. In respect of Estonia, Peeter Roosma was elected. He is currently a justice of Estonia's Supreme Court. But he is also very familiar with the ECHR, as he worked in the European Court of Human Rights between 2004 and 2016 as a lawyer and non-judicial rapporteur. Since then, he has been one of the Estonian ad hoc judges in the Court. He has also been a member of the Venice Commission. Their terms of nine years will start in January 2020.

There will also be some internal reshuffling at the Court, as a new deputy registrar has been elected, Marialena Tsirli. With a long track record in the Court (and before that in the European Commission of Human Rights), she encapsulates a lot of experience in the Strasbourg system. Her term will start on 1 July when she will succeed Françoise Elens-Passos, who has been the deputy registrar since 2015. Secondly, Paul Lemmens, the judge in respect of Belgium, has been elected as section president. His two-year term will start on 20 September.

On the procedural front, on 3 June, the Plenary of the Court adopted the newest version of the Rules of Court, which regulate its internal functioning and procedures.

It was also a very turbulent week for the international organization of which the Court is the crown jewel - the Council of Europe. On 26 June, it announced the name of its new Secretary-General. The Parliamentary Assembly elected the current Minister of Foreign and European Affairs, Marija Pejčinović Burić. She obtained an absolute majority of 159 out of 264 votes cast in the first round against 105 for her competitor, the Belgian Minister of Foreign Affairs Didier Reynders. She will succeed current Secretary-General Thorbjørn Jagland on 24 September, starting her 5-year term. For Reynders it is not the first time he fails to get elected or appointed for a European top position. Conspicuously, the election happened after the Parliamentary Assembly had voted to restore the voting rights of the delegates of Russia, which had been suspended following the Russian annexation of the Crimea. With financial, political and, of course, human rights challenges, this promises to be a tough time to head the organisation. But at least, the Council of Europe sorted out its leadership - something the European Union is still negotiating about at this very moment.

Tuesday, 25 June 2019

Book on the Separation of Powers in ECtHR Case-Law



Aikaterini Tsampi, of the University of Groningen, has published a book on the separation of powers in the case-law of the European Court of Human Rights. The book, written in French, is entitled Le principe de séparation des pouvoirs dans la jurisprudence de la Cour européenne des droits de l’homme and was published by Editions Pedone in the series Fondation Maragkopoulos pour les droits de l’homme (No. 21). This is the abstract in English:


'What of the idea that a constitutional principle concerning the institutional organization of the State, such as the separation of powers, could be found in the jurisprudence of an international court of human rights, namely the European Court of Human Rights ? Even if it were to be audacious to prove that the judges of the Strasbourg Court apply a precise theory of separation of powers, it, nonetheless remains relevant to answer the question whether the solutions adopted by the aforementioned judges outline a coherent vision of what should be, in their view, the relations between the branches of government. Yet, one should always bear in mind that the theory of the separation of powers, as conceived in the contemporary liberal State, implies the consecration of only a minimum nucleus of solutions. Within this context, the primary aspiration of the separation of powers lies in the protection of the judicial and legislative branches against the executive. The European Court of Human Rights shares this view. Even if the principle of the separation of powers is not a principle enunciated by the Court, at least not with the required precision, it is, nonetheless, a principle already present in the Strasbourg jurisprudence and its future cannot but be regarded as promising.' 

Monday, 17 June 2019

New ECHR Readings

Please find below a new batch of academic ECHR readings:

* Meltem Ineli-Ciger, ‘Remedies Available against Asylum Decisions and Deportation Orders in Turkey: An Assessment in View of European Law and the European Convention on Human Rights’, Nordic Journal of International Law, Vol. 88, Issue 2 (2019) pp. 216-249:

'This article examines administrative and judicial remedies against asylum decisions and deportation orders in Turkey and safeguards provided within these remedies with a view to analysing to what extent they are in line with European law and the European Convention on Human Rights (echr). The article has two main parts. The first part provides an overview of the Turkish asylum system and remedies available against asylum decisions and deportation orders in Turkey. Whereas, the second part identifies main procedural safeguards to be observed in asylum and deportation appeals by reviewing EU asylum acquis, the echr and case law of the European Court of Justice and the European Court of Human Rights. Building on this, the article assesses whether the Turkish law and practice incorporate these procedural safeguards and provide asylum seekers and migrants a right to effective remedy.'

And then a whole series of articles related to the European Convention and the European Court published online in the past months in the International Journal of Human Rights:

* Vibeke Blaker Strand, 'Interpreting the ECHR in its normative environment: interaction between the ECHR, the UN convention on the elimination of all forms of discrimination against women and the UN convention on the rights of the child': 

'The article draws attention to how integrative interpretation – a methodology where the European Court of Human Rights integrates its normative environment into the interpretation of the European Convention of Human Rights – may offer an important path to bridging many of the challenges caused by fragmentation in the field of human rights. More specifically, the article offers insight into a selection of ECHR cases that are characterised by the existence of normative overlap between the ECHR, the CEDAW and the CRC; and by the fact that interaction between these legal sources actually takes place in the interpretation carried out by the Court. Interaction is discussed through two topics: the issue of state obligations in relation to domestic violence, and the issue of state obligations in relation to expulsion of immigrants with children. The article demonstrates that systemic integration may result in a strengthening of the protection of human rights under ECHR through what is termed ‘interpretive widening and thickening’.'

* Øyvind Stiansen,'Delayed but not derailed: legislative compliance with European Court of Human Rights judgments':

'Legislative changes can be crucial for implementing human rights. This article investigates how the need for legislative changes influences compliance with European Court of Human Rights (ECtHR) judgments. I argue that the need for legislative changes might influence compliance politics in two ways. First, ECtHR interference with the will of elected parliaments is controversial in several European states. Such controversy might increase the risk of defiance of judgments requiring legislative changes. Second, the greater number of veto players needed to pass legislative is likely to delay compliance. Using original implementation data, I show that the need for legislative changes tends to delay compliance, but does not increase the risk of long-term defiance. The ECtHR's ability to eventually prompt legislative changes is not smaller than its ability to induce other reforms. I also find that delays associated with the need for legislative changes are greater in states with greater numbers of ideologically diverse veto players, in states with a proportional electoral system, and in states without domestic judicial review.'

* Frederick Cowell, 'Understanding the causes and consequences of British exceptionalism towards the European Court of Human Rights':

'The United Kingdom’s exit from the European Union has overshadowed the increasingly fraught relationship the country has with the European Court of Human Rights. In recent years this has been heavily influenced by British exceptionalism among key policy makers. British exceptionalism, this paper argues, is opposition to the European Court of Human Rights characterised by the belief that the UK’s domestic constitutional institutions are unique and superior to the European Convention on Human Rights, in part because of their historical provenance and longevity. This has led to non-compliance with Court judgments being considered or arguments for withdrawal from the Convention being justified on the basis that British traditions and institutions are superior. On the international plane this appears as a double standard on the part of the UK and contributes to the undermining of the Court’s authority. This paper looks at the core arguments of British exceptionalism, examining their historical origins within UK constitutional law and politics, before looking at how exceptionalism affects the Convention system across Europe.'

* Helen Keller & Reto Walther, 'Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3':

'While it is evident that the ECtHR’s main task is applying the ECHR, it is debatable whether the Court has adequate regard to general international law when considering questions left open by the ECHR. We contribute to this debate from a normative perspective. We discuss the criticism that the Court unduly evades the ARSIWA by applying an expansive positive obligations doctrine. We submit that the Court’s propensity to focus on preventive obligations is justified in substance, since it is difficult to imagine how human rights could be effectively protected without such positive obligations in a world where state, third state and private actors mingle. In this sense, the Court’s jurisprudence makes valuable contributions to the adaptation of the international legal system to changing societies. Criticism should focus less on the Court’s inclination toward positive obligations than on its pertinent methodology, which is at times less than convincing.' 

* Martin Kuijer, 'The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession':

'The consequences of a prolonged non-accession of the European Union to the European Convention on Human Rights following Opinion 2/13 of the Court of Justice of the European Union may very well affect the longer-term effectiveness and viability of the Convention system. This contribution gives a succinct analysis of the institutional link between the Convention system and the EU legal order, and of the more recent interaction between the two systems, arguing that both were on what seemed to be a collision course until recently. The author stresses the continued need for an institutionalised arrangement between both regional courts working in the same geographic area interpreting similar human rights standards.'

* Tonje Meinich, 'EU accession to the European Convention on Human Rights – challenges in the negotiations':

'In this article, I go through the main challenges we encountered in the negotiations between the EU and the member states of the Council of Europe on the EU accession to the European Convention on Human Rights. I particularly comment on the discussions concerning the co-respondent mechanism and the inclusion of EU Common Foreign and Security Policy.'

* Geir Ulfstein, 'Interpretation of the ECHR in light of the Vienna Convention on the Law of Treaties'. [no abstract available]

Thursday, 13 June 2019

New Case-Law Guide on Protection of Property

In its ever-increasing collection of case-law guides, the European Court of Human Rights has just now published for the first time a guide on Article 1 of the Convention's First Protocol, the protection of property. Considering that this is among the most invoked Convention articles, as well as being, due to its socio-economic nature, one of the toughest privisions to adjudicate on, it may not be surprising that it took a long time to compile (I know from experience what it is to compile an overview of ECHR case-law on that issue). However, it is still remarkable that the overview presents case-law up till August last year and was only put online now, in early June 2019. Be that as it may, this case-law guide like the earlier ones provides a very extensive and systematised overview of the Court´s acquis on the protection of property. It offers not just an explanation of the various notions in the provision, but also relates the jurisprudence on this to other Convention provisions and goes into specific issues, such as social welfare, banking, taxation, and property restitution. At the end of the extensive, 74-page overview, a list of all the referenced cases with hyperlinks is provided. Only available in English sofar.