Friday, 12 October 2018

Book on ECHR and General International Law

Professor Anne van Aaken (University of St. Gallen) and ECtHR Judge Julia Motoc (also connected to the University of Bucharest) have published the edited volume 'The European Convention on Human Rights and General International Law' in the European Society of International Law Series, with Oxford University Press. The book features both academics and judges at the European Court of Human Rights. This is the abstract:

'The European Court of Human Rights is one of the main players in interpreting international human rights law where issues of general international law arise. While developing its own jurisprudence for the protection of human rights in the European context, it remains embedded in the developments of general international law. However, because the Court does not always follow general international law closely and develops its own doctrines, which are, in turn, influential for national courts as well as other international courts and tribunals, a feedback loop of influence occurs.

This book explores the interaction, including the problems arising in the context of human rights, between the European Convention on Human Rights and general international law. It contributes to ongoing debates on the fragmentation and convergence of international law from the perspective of international judges as well as academics. Some of the chapters suggest reconciling methods and convergence while others stress the danger of fragmentation. The focus is on specific topics which have posed special problems, namely sources, interpretation, jurisdiction, state responsibility and immunity.'

Thursday, 4 October 2018

Handbook on Implementation of ECtHR Judgments

The European Implementation Network has published a new handbook entitled 'Implementation of Judgments of the European Court of Human Rights - A Handbook for NGOs, injured parties and their legal advisers'. The handbook is a great 'how-to" guide for civil society organisations interested in the post-judgment implementation phase. It is freely available online. This is what EIN says about it:

"For many NGOs wanting to support implementation of ECtHR judgments, the Strasbourg judgment execution process presents daunting challenges. Although there is accessible information about the outlines of the process and the general role of NGOs, engaging effectively requires much more: a detailed understanding how the process works, (for example, how cases are categorised, the differing procedures under which they may be treated, the different stages of the process), and a clear grasp of what to say and when to say it. Without this understanding, NGO submissions can lack impact, even for such basic reasons as including the wrong type of information or the information being submitted too late. 

EIN’s new handbook is an important step towards demystifying the process. Prepared with the benefit of input from experienced NGOs during implementation training workshops and with detailed technical advice by the Department for the Execution of Judgments, it provides comprehensive guidance for NGOs, injured parties and their legal advisers. It sets out both a clear description of the Council of Europe’s supervision procedure, and a detailed step-by-step guide to how NGOs and injured parties can engage with this procedure most effectively.

There is wide concern that in many Council of Europe member States implementation of ECtHR judgments is all too often inadequate. NGOs have a vital role to play in improving the quality of implementation. But, in part because of the “black box” that has existed around the judgment execution process, NGOs have intervened in only a small fraction of cases. EIN hopes that this handbook will enable a significant improvement in both the quantity and quality of submissions by NGOs and thereby make a real contribution to improving implementation of ECtHR judgments."


Wednesday, 5 September 2018

New Book on Strategies of Compliance and the European Court

Andreas von Staden (University of Hamburg) has published the new book Strategies of Compliance with the European Court of Human Rights. Rational Choice Within Normative Constraints, in the Pennsylvania Studies in Human Rights Series. This is the abstract: 

'In Strategies of Compliance with the European Court of Human Rights, Andreas von Staden looks at the nature of human rights challenges in two enduring liberal democracies—Germany and the United Kingdom. Employing an ambitious data set that covers the compliance status of all European Court of Human Rights judgments rendered until 2015, von Staden presents a cross-national overview of compliance that illustrates a strong correlation between the quality of a country's democracy and the rate at which judgments have met compliance. Tracing the impact of violations in Germany and the United Kingdom specifically, he details how governments, legislators, and domestic judges responded to the court's demands for either financial compensation or changes to laws, policies, and practices.

Framing his analysis in the context of the long-standing international relations debate between rationalists who argue that actions are dictated by an actor's preferences and cost-benefit calculations, and constructivists, who emphasize the influence of norms on behavior, von Staden argues that the question of whether to comply with a judgment needs to be analyzed separately from the question of how to comply. According to von Staden, constructivist reasoning best explains why Germany and the United Kingdom are motivated to comply with the European Court of Human Rights judgments, while rationalist reasoning in most cases accounts for how these countries bring their laws, policies, and practices into sufficient compliance for their cases to be closed. When complying with adverse decisions while also exploiting all available options to minimize their domestic impact, liberal democracies are thus both norm-abiding and rational-instrumentalist at the same time—in other words, they choose their compliance strategies rationally within the normative constraint of having to comply with the Court's judgments.'

Friday, 24 August 2018

New ECHR Readings

Please find below a range of recent academic articles and publications about the European Convention and the European Court:

* My Utrecht colleague Janneke Gerards has just published (open access) the article 'Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights' in the Human Rights Law Review :

'Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further benefit from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.'

* Kanstantsin Dzehtsiarou, 'What is Law for the European Court of Human Rights?', Georgetown Journal of International Law, vol. 49.1 (Fall 2017) p. 89 ff.:

'This Article will suggest that judges of the European Court of Human Rights (ECtHR) take into account both legal and non-legal considerations when deciding “hard” cases. This Article focuses on these legal considerations, emphasizing the legal, rather than the political, personality of the ECtHR. Legal considerations can be further divided into internal and external ones. The former originate from within the European Convention on Human Rights (Convention) system, such as the ECtHR case law or the law and practice of the Contracting Parties to the Convention. The latter are provisions borrowed from outside of the realm of the Convention, such as international treaties or laws and practices from nations outside of the Council of Europe. This Article will argue that reliance on internal, as opposed to external, sources can help minimize the challenges that the ECtHR is currently facing in regard to its legitimacy.'

* Lize Glas, 'Translating the Convention’s Fairness Standards to the European Court of Human Rights: An Exploration with a Case Study on Legal Aid and the Right to a Reasoned Judgment', European Journal of Legal Studies, vol. 10, no. 2 (2018):

'The European Court of Human Rights (ECtHR) has clarified when domestic procedures are fair, but it remains unclear when the ECtHR’s own procedures are fair. Yet, clarifying the requirements of procedural fairness applicable to the ECtHR is important, especially in a context where doubts have been expressed about the fairness of some of the Strasbourg procedures. This article proposes that the fairness standards from the ECtHR’s case law, which apply to domestic authorities, can be applied to the Strasbourg Court. These standards must, however, be adapted to or ‘translated’ into the ECtHR’s context, because its context is so different from that of domestic authorities. This article, therefore, develops eleven principles of translation. The usefulness of the principles is tested by employing those principles to translate two fairness standards: the right to legal aid and the right to a reasoned judgment. Subsequently, the usefulness of the translated standards is evaluated by applying those translated standards to two aspects of the ECtHR’s practice: the granting of legal aid and single-judge decisions.'

Monday, 20 August 2018

My New Article on Squeezed Civic Space and Human Rights

I am happy to announce that my new article entitled 'Squeezing civic space: restrictions on civil society organizations and the linkages with human rights' has been published open access and is thus freely available to all in the International Journal of Human Rights. This is the abstract:

'In many countries civil society is under pressure. Collective citizens’ efforts, especially when they have political salience, seem to be regarded with increasing suspicion and even to be actively countered. Anti-NGO laws, arbitrary inspections, harassment, and criminalisation all strike at the roots of civic space. Is this part of a trend of ‘reverse transitions’, in which countries slide away from democracy? Or is this maybe an even wider shift, manifestations of which can also be observed in more established democracies? What are the possible causes of this shrinking or closing civic space, how does the closure manifest itself, and what are the linkages to human rights? This article will focus on anti-NGO measures as part of a broader global trend.'

Wednesday, 15 August 2018

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

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

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

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

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

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

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

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

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

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

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

Friday, 10 August 2018

Training on Implementation of Asylum and Migration Cases

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

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

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

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

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

Seminar content:

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

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

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

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

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

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

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

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

Monday, 2 July 2018

New Judge in Respect of San Marino

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

Wednesday, 6 June 2018

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

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

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

Tuesday, 5 June 2018

Summer School on Fundamental Rights in the EU and ECHR

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

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

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

Further information and the call for application can be found here