Tuesday, 3 December 2019

Launch of New Journal: European Convention on Human Rights Law Review

The landscape of academic human rights journals continues to grow. It is a pleasure to announce here that two ECHR experts, Kanstantsin Dzehtsiarou and by Vassilis Tzevelekos, are launching a new journal exclusively dedicated to the ECHR: the European Convention on Human Rights Law Review, to be published with Brill. The journal's aim is to 'connect law and practice and look at the ECHR from a multi-disciplinary perspective.' in the creators words it is 'the first scholarly journal devoted exclusively to the legal regime of ECHR. The Review offers peer-reviewed, legal scholarship on the protection of fundamental human rights within the ECHR framework and on its implications for other regional human rights regimes. It is a forum for inter alia comparative law, human rights law, international law and philosophy of law analysis of the practice and procedures of the ECHR regime. While favouring legal (doctrinal, theoretical and philosophical) analysis, the Review also publishes multi-disciplinary works at the crossroads of law, history, political science and economics. It is open to all methods and schools of thought, including, comparative, doctrinal, quantitative and economic analysis of (case) law. It offers scholarship and information of interest to scholars and practitioners, both in the member states and other regions, as well as to all those working in the field of human rights law.'

The journal accepts submissions of articles up to 18000 words, case comments of up to 10000 words and book reviews. To submit articles, click here. The new journal can also be followed on twitter: @LawECHR . 

Friday, 29 November 2019

New Book on Fatherhood and the ECHR

Alice Margaria of the Max-Planck-Institut für ethnologische Forschung has just published The Construction of Fatherhood. The Jurisprudence of the European Court of Human Rights with Cambridge University Press. A great example of combining social sciences and the law. The book has already received praise from scholars who referred to it as "exemplary piece of scholarship" (Eva Brems), "a crystal-clear overview of the construction of fatherhood" (Frederik Swennen)  and "nothing short of a jewel - the author knows how to allow a highly complex, dynamic and technical theme to unfold gradually and naturally. In doing so, she has produced a 'tour de force' that is both highly enlightening and genuinely exciting to read" (Marie-Claire Foblets). This is the abstract:

'The book tackles one of the most topical socio-legal issues of today: how the European Court of Human Rights is responding to shifting practices and ideas of fatherhood. The jurisprudential analysis is situated in a context of social change that offers radical possibilities for the fragmentation of the conventional father figure and therefore urges decisions upon what kind of characteristics makes someone a legal father. In a range of paradigmatic domains, this book explores the Court's understanding of what it means to be a father today, and whether care is valued at all. It also reflects on the genesis of the Court’s (re-)construction of fatherhood, thus shedding light on the roles played by doctrines of interpretation.'

Thursday, 21 November 2019

Special Issue on ECHR and Derogations

The Austrian Review of International and European Law Online has published a special issue on derogations from the European Convention on Human Rights. My SIM colleague Kustrim Istrefi  (Utrecht University) and Stefan Salomon (University of Graz) were the editors of this volume that goes into a number of country case studies of recent real or announced derogations from the ECHR in the last few years. These are the articles included in it:

* Kushtrim Istrefi and Stefan Salomon, 'Entrenched Derogations from the European Convention on Human Rights and the Emergence of Non-Judicial Supervision of Derogations'

* Benedikt Harzl and Oleksii Plotnikov, 'Ukraine’s Derogation From the European Convention on Human Rights'

* Luca Pasquet, 'The French State of Emergency: From Crime-Repression to the Protection of Public Order'

* Kerem Altiparmak and Senem Gürol, 'Turkey’s Derogation of Human Rights under the State of Emergency: Examining its Legitimacy and Proportionality'

* Vassilis P Tzevelekos, 'The United Kingdom’s Presumption of Derogation from the ECHR Regarding Future Military Operations Overseas: Abuse of Rights, Articles 17 and 18 ECHR, and à la carte Human Rights Protection'

Monday, 11 November 2019

New Book on Admissibility at the European Court

Robin Schädler has published the new book Re-designing the Admissibility Model of the European Court of Human Rights with Schulthess Verlag. The book re-interprets the existing admissibility criteria with a view to making their interpretation more principled and predictable. Based on a theory of justice termed "communitarian egalitarianism", the thesis compares the stance of the European Court of Human Rights with six European constitutional courts to see whether any lessons can be learned from them. It is partly based on around 60 interviews with judges, judicial assistants and other stakeholders. This is the abstract (in German):

'Wenn der EGMR zum Thema wird, dreht sich die Diskussion üblicherweise um Urteile. Demgegenüber fristen die Unzulässigkeitsentscheidungen, welche einen Löwenanteil von 97% bis 98% aller Fälle ausmachen, ein Schattendasein. Vorhersehbar ist der Ausgang eines Verfahrens unter Umständen kaum. Der Grund dafür ist, dass der EGMR sich selbst nicht darüber im Klaren ist, für was er steht. Dies nimmt «Re-designing the Admissibility Model of the European Court of Human Rights» zum Anlass, um eine neuartige Gerechtigkeitstheorie zu formulieren, anhand welcher die bestehenden Zulässigkeitskriterien uminterpretiert werden. Dadurch wird deren Anwendung prinzipientreuer und vorhersehbarer, sodass Rechtsanwender*innen eher abschätzen können, ob sich ein Gang nach Strassburg lohnt.'

Wednesday, 6 November 2019

New ECHR Readings

Please find below a new selection of recent academic articles and other documents related to the European Convention and the European Court:

* Amalte Frese and Henrik Palmer Olsen, ‘Spelling It Out−Convergence and Divergence in the Judicial Dialogue between CJEU and ECtHR’, Nordic Journal of International Law, vol. 88, issue 3 (2019) pp. 429-458:

'In this article we investigate the relationship between the Court of Justice of the European Union and the European Court of Human Rights as it manifests in explicit cross-references between the two Courts’ jurisprudence. The analysis detects cross-references, how they are used and indications of converge or divergence in the jurisprudence through their explicit citations and references. Our dataset consists of the entire corpus of judgments from both Courts from 2009 (when the EU Charter on Fundamental Rights came into force and until the end of 2016. On the basis of a content search for references to the other Court in both corpora we detect all their cross-references. We find that 1) the Courts’ use each other’s case law surprisingly little, but when they do, it is 2) primarily within the legal domains of criminal justice and immigration policies, and 3) displaying convergence towards the jurisprudence of the other Court.'

* Simone Lonati, ‘Anonymous Witness Evidence Before the European Court of Human Rights: Is It Still Possible to Speak of "Fair Trial"?’, European Criminal Law Review 1 (2018):

The purpose of this paper is to encourage a reflection on the use of anonymous witness evidence by the European Court of Human Rights. An analysis of the leading cases solved by the Strasbourg judges will provide an overview of the European case law developments on such a delicate topic, considering how the accused’s right of defence is seriously impaired when anonymous depositions are admitted in proceedings. The Court’s most recent decisions on this topic do create some concern. They represent a considerable step backward in the guaranteed right to confrontation, which, especially when dealing with anonymity, does not seem acceptable. While there is no question on the need to protect persons other than the accused in criminal proceedings and on the urgency to safeguard the safety of witnesses, when in danger, and preserve the source of evidence, on the other hand, it is hard to imagine what “counterbalancing procedures” could compensate for all that the accused is denied when the identity of the person making incriminating statements against him/her is concealed. It is, therefore, a matter of making a civilised choice, and of asking ourselves whether in a trial that still aspires to be defined as “fair”, anonymous incriminations may be tolerated.' 

* Katarina Frostell, ‘Welfare rights of families with children in the case law of the ECtHR’, The International Journal of Human Rights (published online 29 July 2019):

'This article sets out to apply a human rights perspective on welfare rights of families with children. It explores how such rights emerge in the case law of the ECtHR by focusing on traces of substantive welfare rights in the Court’s reasoning when determining the personal and material scope of ECHR rights at different stages of the proceedings. The rights under investigation are the right to non-discrimination, the right to respect for family life and the right to property. The findings show that the right to non-discrimination has in many instances managed to question gender stereotypes by taking important steps away from the biologically defined conception of motherhood towards viewing caring roles and tasks more as social functions that both social and biological parents are fulfilling. Vulnerable groups of mothers and children have had more difficulties in getting their rights protected under the present non-discrimination framework. Developments under Article 8, indicating that the right to family life includes a core element of social rights at least in the context of destitute families are therefore promising.'

* Majid Nikouei and Masoud Zamani, ‘Jurisprudence of Tolerance: Hate Speech, Article 17 and Theory of Democracy in the European Convention on Human Rights’, International Human Rights Law Review, vol. 8, issue 1 (2019) pp. 67-88:

'What does the protection or prohibition of a speech tell us about the tripartite relationship between political power, democracy and rights? This question has somehow underscored the jurisprudence of the European Court of Human Rights in hate speech cases for more than a half century. We argue that this question has invariably placed the Court in an uneasy position, which is, choosing between a democracy empowered by unlimited freedom of speech, but with recurrent social tensions, and a democracy with rather strict hate speech laws, but at ease with different segments of population. That said, the jurisprudence of the European Court outlines a pattern by which to identify a specific direction for the evolution of rights and democracy. This article considers this pattern. Not only does this article examine the pattern in the Court’s and the Commission’s jurisprudence, but it also argues that this pattern unfolds a subtle presence of Hobbesian and Lockean theories of political power and the limits in its midst. By invoking this presence, we indicate how the debate in the jurisprudence of the European Court has shifted from the language of protecting democracy to that of rights.'

* Lieneke Slingenberg, ‘The Right Not to be Dominated: The Case Law of the European Court of Human Rights on Migrants’ Destitution’, Human Rights Law Review, vol. 19, issue 2 (2019) pp. 291-314. 

'The European Court of Human Rights increasingly deals with migrants’ complaints about destitution in their host state under Article 3 of the European Convention on Human Rights (the prohibition of inhuman and degrading treatment). This case law has been criticized for not being consistent and/or for not providing migrants with enough protection. Based on a systematic case law search, in this article, I analyse Article 3 case law on migrants’ destitution from a new perspective: the concept of freedom as non-domination, as developed in (neo) republican theory. It will argue that, seen through this lens, many tendencies in the Court’s case law can be explained and constructed as consistent, and it is submitted that in this way the Court does provide migrants with important protection against unfreedom. Nevertheless, I also argue in the article that the case law could be improved in a number of ways in order to provide more effective and robust protection against domination.'

Friday, 18 October 2019

René Cassin Moot Court Competition 2020

The oldest Moot Court competition on the ECHR is the French-language Concours René Cassin, held every year in Strasbourg. The case for the upcoming year's competition is now online here. The finals are often judged by moot courts including current judges from the Court, which make it an exciting competition. It is organised and run under the sposnorship of the university of Strasbourg, the Fondation René Cassin-Institut International des droits de l’Homme, the European Court of Human Rights and the Council of Europe. The 2020 edition will be held from 25 to 27 March and revolves around human rights and algorithms. For the Concours' Linkedin page including a video impression of the Competition, see here.

Tuesday, 8 October 2019

New Judge Elected in Respect of Portugal

Last week, the Council of Europe's Parliamentary Assembly (PACE) elected Ana Maria Guerra Martins as the new judge in respect of Portugal. By a large majority of the votes cast she was elected for a nine year term. Currently she is an associate professor specialising in human rights at the Law School of Lisbon University and a member of the European Commission's European Network of Legal Experts in Gender Equality and Non-Discrimination. Between 2007 and 2016 she also served as a judge on the Constitutional Court of Portugal. 

The new judge will succeed Paulo Pinto de Albuquerque on 1 April 2020, the judge well-known for his many separate, dissenting and concurring opinions that have been a feast for external Strasbourg watchers and case-law analysts.

Thursday, 3 October 2019

September Issue of NQHR Online

The September 2019 Issue (Vol. 37, No. 3) of our Netherlands Quarterly of Human Rights is now online. It includes three articles directly related to the ECHR:

* Eva Brems, 'Positive subsidiarity and its implications for the margin of appreciation doctrine': 

'The article presents an argument in favour of a richer theory of subsidiarity in the European Court of Human Rights context. In particular, the proposal is to include what is called a ‘positive’ dimension in subsidiarity thinking. That is to say, the article argues that the scholarly and political debate on ECHR subsidiarity has focused mostly on ECHR restraint, associated with a wide margin of appreciation for the States Parties. There is however a complementary dimension in the subsidiarity layout, which concerns the responsibility of national authorities to offer first-line protection of Convention rights. The article examines the role the European Court of Human Rights can play in facilitating that first-line responsibility. The article explores what this means for the margin of appreciation of national authorities.'

* Lize R. Glas, 'The European Court of Human Rights supervising the execution of its judgments':

'The European Convention on Human Rights (‘Convention’) provides that the Committee of Ministers shall supervise the execution of the European Court of Human Rights’ (‘Court’) judgments. This article aims to address the question whether, despite what the Convention provides, the Court is involved in supervising the execution of its judgments. Additionally, this article addresses the question what the Court does when it is engaged in this exercise. In order to answer these two questions, four aspects of the Court's practice that are linked to the execution process are examined. These are the four aspects of interest: just-satisfaction judgments under Article 41 ECHR, follow-up cases concerning individual measures, follow-up cases concerning general measures and the pilot-judgment procedure. The analysis of these aspects will lead to the conclusion that the Court indeed engages in supervising execution, but also that this does not mean that the Court is taking on the Committee's task and that supervising execution has not become in any way part of the Court's day-to-day work.'

* Francesca Camilleri, 'Compulsory vaccinations for children: Balancing the competing human rights at stake':

'Vaccination for children has been a controversial topic for decades and lately it has regained particular importance. We have seen an increase in vaccine hesitancy and decrease in vaccine confidence throughout Europe, particularly due to vaccine-safety concerns by parents. Consequently, vaccination rates for children have dropped and this in turn has led to an increased spread of vaccine-preventable infectious diseases, such as measles. As a reaction to this phenomenon of vaccine hesitancy, several European countries have introduced, while others are in the process of introducing, laws making vaccinations compulsory for children for a number of vaccine-preventable childhood diseases. The introduction of such laws affects and gives rise to several competing interests of the parents, the child and the State. Against this background, this article seeks to determine how the European Court of Human Rights should balance the competing human rights that are at stake in cases concerning compulsory vaccinations for children.'

Tuesday, 24 September 2019

European Human Rights Moot Court Competition

The call for applications for the 8th edition of the European Human Rights Moot Court Competition (EHRMCC) has been put online. The EHRMCC is the largest English-language human rights moot court competition in the world. It offers excellent opportunities for students from all over Europe to improve their written and oral advocacy skills through simulating the procedures of complaint for the European Court of Human Rights. With this 8th edition of the Competition, the organising European Law Students' Association (ELSA) is introducing mandatory Regional Rounds. This is an excellent opportunity for all participants to improve their oral advocacy, network with fellow participants from all over Europe and prepare for the Final Oral Round! The three Regional Rounds will take place in the United Kingdom, Germany and Lithuania. During the Final Oral Round in Strasbourg, the finalists will plead in front of current Judges of the Court, meet distinguished human rights experts and enjoy grand ceremonies as well as take part in 18 Preliminary Rounds, 4 Quarter Finals, 2 Semi Finals and one Grand Final in the Grand Chamber. 

The fictitious case of the 8th edition of the EHRMCC concerns events surrounding a military operation, which took place in the context of an international armed conflict. In the case, complaints were lodged under Articles 2, 3, 6, 8, and 13 of the European Convention on Human Rights. You can read more about the Competition here and for any enquiries please contact Sarah Ikast Kristoffersen at academicactivities at elsa.org.

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."