Friday, 31 October 2008

Hurray for the Court!

Tomorrow the new European Court of Human Rights will exist exactly ten years, as I reported earlier. In spite of all the current problems, that is a reason to celebrate! As president Costa remarked yesterday:

Much has been achieved over the last ten years, which has seen over 9,000 judgments delivered and human rights jurisprudence evolve into a common language understood and used by legal professionals and others throughout Europe and beyond. It is enormously important that the Court should be able to continue to play to the full its role as a guarantor of democracy and the rule of law in the 47 States through which its jurisdiction extends. This means that the Court will have to adapt to cope with the massive inflow of cases which it has experienced since 1998, that further reforms to the system are required and, above all, that at the beginning of the 21st century and a few weeks before the 60th anniversary of the Universal Declaration of Human Rights all the member Governments of the Council of Europe must reaffirm their commitment to effective international human rights protection, while ensuring that their domestic systems offer citizens the possibility to seek redress for human rights breaches at home.
May many more years follow and may the Court stay afloat in the endless sea of applications!

Non-Refoulement under ECHR

My former colleague of Leiden University, Maarten den Heijer (see his earlier post on this blog here), has just published an article in the European Journal of Migration Law, entitled 'Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights' (vol. 10, 2008, pp. 277-314). He intriguingly analyses to what extent other Articles of the ECHR than 2 and 3 are relevant in the context of non-refoulement. Here is the abstract:

This article challenges the assumption that under the European Convention of Human Rights only Articles 2 and 3 bear relevance in cases of refoulement. By unraveling the explicit and implicit principles applied by the European Court of Human Rights and elaborating upon earlier theoretical attempts to ascertain the impact of the Soering judgment on extradition and expulsion cases, it is argued that there is no clear dichotomy of rights within the European Convention and that the higher threshold for applying Convention standards to cases of expulsion in which maltreatment is suffered in the receiving country is dependent on the notion of a 'fundamental value'. Albeit a somewhat nebulous concept, this notion is likely to encompass not only Articles 2 and 3, but also norms protected by other provisions, or at the least certain intrinsic components of those other provisions.
Highly recommended!

The article is accessible through Ingenta for (academic) subscribers.

Wednesday, 29 October 2008

New Book on ECHR

Helen Keller and Alec Stone Sweet, of the universities of Zürich and Yale respectively, have just published a new book on the ECHR: A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 2008). It seems to be a useful addition to the growing literature on the reception of the European Convention on the national level. Here is the abstract:

This volume focuses, comparatively and dynamically, on the reception of the ECHR regime within the national legal orders of the Member States of the Council of Europe. The definition of "legal order" used is expansive, including the legislature, the executive, the judiciary, and any public authority established through constitutional and public law that produces or applies legal norms. The central inquiry of the book is how, through what mechanisms, and to what extent, the national legal orders of the Member States are coordinated with, adapted to, or adjusted by the ECHR - emphasizing both the cooperative and conflictive aspects of reception.

The book brings together a series of structured-focused comparisons: each chapter undertaking a comparative case study which collects and analyzes basic data on the reception of the ECHR within national legal orders. These structured-focused comparisons, whose purpose is not so much to test theory, but to develop appropriate theoretical concepts and to generate hypotheses, work on the assumption that comparing two, relatively like cases offer a better opportunity to build more general theoretical frameworks.

Through an examination of a set of general questions about how national decision-makers - governments, legislators, and judges - have reacted to the evolution of European human rights law, the chapters enquire how various actors within national legal orders could take decisions to either hinder or to enhance the status of the ECHR. What interests or values, individual or corporate, are judges maximizing? How has this affected the evolution of the ECHR? How do national constitutions take into account treaty law (or international law generally)? Do separation of powers doctrines (or other explicit provisions of public law) permit or prohibit the judicial review of the legal validity of legislative and executive acts with reference to "higher" norms? To what extent should the federal or unitary nature of a Member State make a difference to reception? That is, should we expect the territorial distribution of powers and competences - judicial, legislative, administrative - to have an effect on the status or effectiveness of the ECHR, and if so, how?

Tuesday, 28 October 2008

Another Victory for the Freedom of Assembly

Last Thursday the Court found a violation of the right to the freedom of assembly (Article 11 ECHR) in the case of Sergey Kuznetsov v. Russia. The case concerned a small-scale peaceful demonstration in 2003 in front of the Sverdlovsk Regional Court building. The demonstrators distributed leaflets concerning the alleged corruption of the Court's president. The demonstration itself occurred without any problems, but the applicant was subsequently fined for violating the law on demonstrations (he had filed an application 8 days instead of the required 10 days in advance), for obstructing the passageway to the court and for demonstrating with another aim than the one he had asked permission for (slander of the court's president instead of uttering concern about general problems of judicial protection).

What is interesting is that the European Court found a violation, even though the applicant himself had obviously violated the time limits under domestic law. This is another example of the European Court pointing out to domestic authorities that they should not be overly formalistic. One should bear in mind that the specific context of the case led the Court to this conclusion: it was decisive that the applicant's violation of the notification deadline did not prevent the authorities from properly preparing for the demonastration (such as organsing police presence). The demonstration itself was peaceful, did not block the entry to the Court, and did not amount to defamation, incitement to violence or the rejection of democratic principles.

With this judgment the Court continues the line in its case law of 2007 by putting the emphasis on the practical elements of the right to freedom of assembly at the expense - and rightly so, I would say - of purely formalistic notions.

(And just to be clear: the photograph is of another demonstration).

Thursday, 23 October 2008

Moratorium on Extraditions to Turkmenistan

Today the Court established a de facto moratorium on extraditions from ECHR state parties to Turkmenistan. In its judgment in the case of Soldatenko v. Ukraine, the Court found that the extradition of the applicant from Ukraine to his own country would violate Article 3 ECHR (prohibition of inhuman or degradign treatment). Nikolay Ivanovich Soldatenko left Turkmenistan in 1999 a few months after an indictment was issued against him for inflicting bodily harm. In 2007 he was arrested by Ukraine on the basis of Turkmenistan's request for extradition. Soldatenko applied for and got an interim measure from the European Court not to be extradited pending the procedure in Strasbourg.

What is really remarkable in today's judgment is that the Court found that in general the detention conditions in Turkmenistan at this moment are so bad and the occurence of torturing of suspects to extract confessions so widespread that extradition of a suspect to that country would violate Article 3 ECHR. One may note that this is irrespective of the (ethnic) status of the applicant or the kind of crime with which he is charged. This amounts to a moratorium, at least for the time being, of extraditions to the central Asian republic! The Court based itself on reports of the United Nations, the United States State Department, the Helsinki Federation for Human Rights and Human Rights Watch of 2006 and 2007. Given this wide basis of information on which the Court built its judgment it is unlikely that this moratorium will be lifted any time soon, unless the situation in Turkmenistan drastically improves.

Wednesday, 22 October 2008

New Method of Compensation under Article 41

Yesterday, the Court issued its judgment on just satisfaction in the case of Guiso-Gallisay v. Italy. The case concerned a rather straightforward situation of indirect expropriation. The Court seized the opportunity to introduce a new and more equitable method of awarding compensation under Article 41 ECHR. The Court's press release summarizes this new method as follows:

The method used hitherto was to compensate for losses that would not be covered by payment of a sum obtained by adding the market value of the property to the cost of not deriving earnings from the property, by automatically assessing those losses as the gross value of the works carried out by the State plus the value of the land in today’s prices. However, the Court considered that this method of compensation was not justified and could lead to unequal treatment between applicants, depending on the nature of the public works carried out by the public authorities, which was not necessarily linked to the potential of the land in its original state. In order to assess the loss sustained by the applicants, it therefore decided that the date on which they had established with legal certainty that they had lost the right of ownership over the property concerned should be taken into consideration. The total market value of the property fixed on that date by the national courts was then to be adjusted for inflation and increased by the amount of interest due on the date of the judgment’s adoption by the Court. The sum paid to applicants by the authorities of the country concerned was to be deducted from the resulting amount.
We will see in the future whether this new method makes the satisfaction indeed more just.

Tuesday, 21 October 2008

Social and Economic Rights and the ECHR

Last week Jean-Paul Costa, the President of the Court, gave the opening speech (in French) at a seminar on economic, social and cultural rights organised by the French Human Rights Commission. It is well-known that the European Convention does not contain many socio-economic rights as such (the few exceptions being the protection of property and the right to education). Thus Costa specicifally pointed to that other important European human rights treaty, the European Social Charter. The Court has increasingly started to refer to that text. In addition, the Court's president noted that the Court has on a small scale, but for many years already, read socio-economic rights into the existing provisions of the Conventions. Notably, he implied that this development may continue in unexpected directions in the years to come. He referred to a recent application by a Russian citizen (Budina) who complained that his pension was so low that it violated Article 3 ECHR (prohibition of inhuman and degrading treatment). In his speech, Costa noted that such applications would have been dismissed as manifestly ill-founded in the past, but that such may not necessarily be the case in the future. In this respect, there are indeed some precedents: in its judgment in the case of Moldovan II (2005), the Court held that the living conditions of a group of evicted Roma were so horrible that there had been a violation of Article 3. This comes close to reading at least a minimum right to housing into the Convention in eviction cases.

Considering the difficulties of having socio-economic rights violations judicially reviewed on the international level, this is certainly a development to be followed. Keep the name Budina in mind!

Monday, 20 October 2008

Privacy Rights of Former Torture Suspects

Last week the Court issued its judgments in the two connected cases of Kyriakides v. Cyprus and Taliadorou and Stylianou v. Cyprus. The three applicants in the cases were retired police officers. In 1993 the three men were accused of torturing suspects (Taliadorou and Stylianou) and negligence in failing to stop this (Kyriakides, their superior). They were acquitted during criminal proceedings, since the prosecution failed to convince the judges that there was a prima facie case. However, an independent inquiry commission appointed by the Council of Ministers of Cyprus later found them guilty of the same offences and they were all dismissed by a ministerial decision of 1993. This decision was later quashed by the Supreme Court, since the three had been dismissed without any trial or disciplinary proceedings. What then followed was a judgment by a lower court awarding them compensation for damage to their psychological and moral integrity and reputation (one may indeed understand what the stigma of 'torturer' causes). The Supreme Court then reversed this compensation decision , holding that the moral injury had no causal link with the decision of dismissal.

The applicants mainly complained about a violation of the right to respect for privacy (Article 8 ECHR). They submitted that the last reversal of the Supreme Court had failed to take into account the harm done to their integrity and reputation. The European Court reiterated that such harm indeed fell within the scope of Article 8. It noted, however, the following in para. 56:

The Court also accepts that Article 8 cannot be relied on in order to complain of the damage to an individual’s reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence. It notes however that the applicants had been acquitted of the offences with which they had been charged and that the domestic court found that there had been no case for the defence to answer.
The European Court held that the Cypriot Supreme Court had failed to sufficiently explain its decision. No assessment of proportionality had been conducted. Thus the domestic courts had overstepped their margin of appreciation and Article 8 had been violated.

The applicants Taliadorou and Stylianou also complained about a violation of Article 6(2) ECHR - the presumption of innocence - but the Court held that the Cypriot Supreme Court's decision on compensation did not undermine their innocence and thus no violation was found on that point.

The judgments shows, as could be expected, that the stigma of torture clearly affects one's right to respect for private life. In addition, the Court clearly established that there is a clear difference in this respect between convicted and acquitted persons. Rightly so, of course.

Thursday, 16 October 2008

Suicide in Prison Judgment

Today, the Court issued its judgment in the case of Renolde v. France. The facts of the case are sad: in July 2000 Joselito Renolde committed suicide in prison. He had been arrested and put into detention a few months earlier pending his trial for amongst others armed assault on his former partner and their 13-year-old daughter. In July he attempted to commit suicide with a razor blade in his cell. He was examined by psychiatrists and he told them he had a "history of psychiatric problems" and that he had earlier lived in a psychiatric institution. Antipsychotic medication was prescribed from then onwards, but the prison authorities did not supervise whether he actually took the medication. A few days later he assaulted a warden and as a result was placed in a punsihment cell for 45 days. A few weeks later he was found dead, hanging from the bars in his punishment cell. The investigation showed that he had probably not taken his medicines for at least two or three days.

The application was brought by his sister. She complained about violations of Articles 2 (lack of preventive measures to protect her brother's life) and 3 (inhuman treatment and degrading treatment of her brother) ECHR. The Court agreed with her. Elaborating on its case law in Keenan and Rivière, it found violations of the two articles. It pointed at the specific needs of the mentally disturbed when being imprisoned. Especially the lack of supervision for the taking of the medication and the placement in a punishment cell (the most severe punsihemnt) were crucial elements for the Court.

One may also want to read the short concurring opinion of Judge Villiger,who points at the importance of supervision concerning the taking of medication in all cases of vulnerable persons. Thus, the importance of the matter, in his eyes, goes beyond psychiatric patients, but applies equally to e.g. children.

The press release of the case can be found here.

Wednesday, 15 October 2008

Two New Academic Articles on the ECHR

As I reported yesterday, the Court looked at its achievements and challenges at a seminar this week. For those interested in reading an external critique of the current problems facing the Court, the following recent article from the Human Rights Quarterly is recommended: Steven Greer, What's Wrong with the European Convention on Human Rights? (Volume 30, no. 3, 2008). This is the abstract:

The European Court of Human Rights faces a potentially fatal case overload crisis. But this is not the only problem confronting the European Convention on Human Rights. The underlying difficulty is the reluctance of the Strasbourg institutions, and others, to acknowledge that the Convention's main function is not to provide remedies for each deserving applicant. It is, rather, to promote convergence in the operation of public institutions at all levels of governance in Europe by articulating an abstract constitutional model which member states should then apply in their own domestic constitutional systems. This article seeks to make the case for "constitutionalization" and to explore the policy implications.
The same issue of the Quarterly contains another article on a highly topical issue in the ECHR context: Jill Marshall, Conditions for Freedom?: European Human Rights Law and the Islamic Headscarf Debate. Here is the abstract:

This article investigates women's choices and personal freedom by reference to the European Court of Human Rights' jurisprudence on national laws banning the wearing of the Islamic headscarf by adult women. The article focuses on how ECHR law is used and misused to shape women's autonomy rights, with specific emphasis on how women's rights to develop and express their own individual identities are impacted under this legal regime. The reasoning of the case law is criticized: no evidence was produced that the wearing of the headscarf was anything other than the women's choice; furthermore, preventing them from wearing it restricts their autonomy in a way inconsistent with other jurisprudence of the same court.

Tuesday, 14 October 2008

10 Years of the New Full Time Court

Yesterday, the Court organised a seminar to commemorate that in a few weeks from now, on 1 November, it will be exactly ten years ago that Protocol 11 to the ECHR entered into force. The Protocol merged the European Commission of Human Rights with the Court and the Court became a full time functioning institution. Amongst others, the Court used the seminar to meet up with NGOs. President Costa held two speeches, which can be found here and here (both in French). Webcasts of the meeting can be found here and here. Yes, the audiovisual department of the Court does a lot to keep us all informed!

Monday, 13 October 2008

Another Echo of WW II

Two large scale problems arising from World War II were dealt with by the Court in the same month. Last week, I already reported about the finalisation of the Court's pilot case procedrue in the so-called Bug river cases, concerning Poles who had to leave their homes at the end of the War when parts of Eastern Poland were incorporated into the Soviet Union. As a form of compensation for its lost territories Poland was given parts of Eastern Germany. Thus Poland in effect moved to the West. Many of the Polish refugees from the East settled in these territories. The Germans living in those regions were, in turn forced to flee further Westwards, having to leave behind most of their properties.

Last week the Court declared an application concerning the last group inadmissible. The complainants, united in the legal person Preussische Treuhand Gmbh & Co. KG, had lodged a complaint against Poland. Their main claim was that Poland had violated Article 1 of the Convention's First Protocol (property protection) since the taking of the applicants' properties had no legal basis under international law. The depossessions were, according to the applicants, undertaken in a context of ethnic cleansing. They claimed that this crime against humanity was part of a continuing violation of their rights under the Convention. They had never received any compensation.

The application was declared inadmissible on several grounds. As to the Court's jurisdiction ratione personae, it held that the complained acts (the expulsions) could not be attributed to Poland. As the Court noted, large groups of Germans had been forcibly evacuated by the Nazis towards the end of the War and many others had been forced to flee the approaching Soviet Army. During this period the state of Poland had no de facto or de iure control over the territories involved. In addition the Court held that the situation could not be seen as a continuining violation, as for example in Loizidou v. Turkey (concerning Northern Cyprus), since in this case the formal expropriations were legally valid Polish laws of 1946. Since Poland ratified the ECHR only in 1994, the impugned acts fell outside the Court's jurisdiction. No Polish restitution laws existed on this point. As the Convention does not include a duty to enact restitution laws, the application was also inadmissible ratione materiae.

Although I find the Court's argumentation on the separate points convincing, a small internal incongruency struck me: why does the Court on the one hand hold that Poland cannot be held accountable for the loss of property (since the areas were Nazi or Soviet occupied) and on the other hand consider the Polish expropriation laws of 1946 as defining for its temporal jurisdiction? Are we talking about two different sets of legal facts: the ethnic cleansing and loss of property in practice and the loss of property de iure? Only in that case does the Court's argumentation make sense. If so, then the applicant's lawyers did not have a lucky hand in the construction of their case and its presentation, it seems...

The leading case on the Court's temporal jurisdiction is the Grand Chamber judgment in Blecic v. Croatia (2006). For an analysis of the Court's case law preceding that case and the problem of continuing violations, see my own: A Lifeline in Time - Non-Retroactivity and Continuing Violations under the ECHR, published in the Nordic Journal of International Law, vol. 75 (2006) pp. 63-88 (available at IngentaConnect for subscribers and academic institutions).

Friday, 10 October 2008

Georgian Battleground Moving to Strasbourg

The armed conflict between Georgia and Russia concerning the region of South Ossetia might have been relatively short for a war, the effects of this violence are still being felt. Now, the battleground seems to be increasingly shifting to the courtroom. Georgia already filed an inter-state application against Russia with the European Court of Human Rights and the two states also find themselves facing each other at the International Court of Justice. This is not all, however. Today the European Court announced in a press release that it is being flooded by applications from South Ossetians concerning the August events. As of this week, more than 2,700 individual complaints have already been received. Many concern damages to personal health and property. As the Court's press release dryly notes - maybe in an effort to stem the tide somewhat - this has "has increased the already considerable workload". To my mind, it is not clear to what extent the large number of applications are part of an orchestrated effort, but it will certainly only compound the Court's problems...

Caught in a Minefield

Yesterday, the Court issued its judgment in the Albekov and others v. Russia case which may not only have been a landmark, but also a landmine judgment. Three family members of the applicants, all civilians, had been killed by landmines in a forest near the village of Akhinchu-Barzoy in Chechnya. One of them was bringing in his cattle and when he did not return, two other villagers went to look for him and also got killed by landmines. Russia claimed that the landmines had been planted by armed gangs. The authorities had, however, due to earlier incidents, been aware of the location of the mines. It was on that issue that the European Court focused when assessing the case under Article 2 (right to life): the fact that the authorities knew that the landmines were there was sufficient to give rise to a positive obligation under Article 2 ECHR. Further developing and refining an earlier judgment (Pasa and Erkan Erol v. Turkey of 2006), the Court has now made clear that in this context three kinds of obligations rest upon a State Party. At the very least the authorities should (1) mark and seal off an area of which they know that it contains landmines and (2) comprehensively warn people living in the vicinity of it. This is the minimal obligation. Depending on the circumstances the Court would then look also at a third factor: endeavours to locate and deactivate the landmines. In this case, the Court unanimously found a violation of Article 2 for the state failure to protect the rigth to life. The case thus provides clear guidelines on how states should handle minefields.

Wednesday, 8 October 2008

Conference on ECHR

The University of Nottingham's Human Rights Law Centre is organising a conference for academics and legal practitioners on topical issues concerning the ECHR. This is the announcement:

The Conference will be held on Friday 14 November 2008, 9am-5pm, in the Great Hall, Trent Building, University of Nottingham.

This Conference will cover issues that will be of interest to academics, students and practitioners alike, highlighting and addressing the following challenges facing the European Convention System:

- Terrorism and the European Convention on Human Rights, by Egbert Myjer, Judge of the European Court of Human Rights;
- The Behrami case: Questions of Jurisdiction and Attribution for UN Action in Kosovo, by Marko Milanovic, University of Cambridge and formerly Associate, Belgrade Centre for Human Rights;
- Islam and the European Convention: The Refah and Sahin cases, by Professor Dominic McGoldrick, University of Liverpool;
- Russian Cases before the European Court of Human Rights, by Sergei Golubok, Lawyer, European Court of Human Rights Registry;
- The European Court of Human Rights’ Approach to Overruling its own Precedents, by Professor Alastair Mowbray, University of Nottingham.
For further information about this event and registration details, please visit the European Human Rights Law Unit. This is the link.

Tuesday, 7 October 2008

Hearing in Domestic Violence Case

Today the Court held a hearing in a case concerning domestic violence. The applicant, Nahide Opuz, has lodged a complaint against Turkey. The case centres on Opuz' extremely violent husband who gravely ill-treated her and her mother many times and eventually killed her mother. Although the authorities were made aware of the situation, they apparently failed to take any adequate action. The applicant does not only complain about violations of the right to life (Article 2 ECHR) and the prohibition of torture and inhuman and degrading treatment (Article 3 ECHR), but also about discrimination in the sense of lack of protection under Turkish law for women who are victims of domestic violence.

The fact that a public hearing is organised - a relatively rare occurence in Strasbourg - and that the NGO Interights has been given leave to intervene as a third party, both point to the fact that this case is generating a lot of interest both inside and outside the Court. It reflects an increasing awareness that issues of domestic violence are matters of public interest.

This is the link to the hearing. A link to the internet page of Interights on the case, including their legal brief, can be found here. Finally, this is the link to the Court's press release.

Monday, 6 October 2008

The Pilot has Landed

This week the Court concluded its first full cycle in a so-called pilot case procedure. It struck out 176 pending applications in the "Bug River" cases. These cases all concerned claims of applicants who disagreed with a Polish scheme set up to compensate people who had lost their belongings at the end of the Second World War, when the boundaries between the Soviet Union and Poland were changed, causing more than 80,000 Poles to be forced to leave their homes.

The pilot case procedure is a procedure used by the Court to deal with systemic human rights problems which surface in a large number of comparable applications. In such cases the Court selects a "pilot" case and decides in that specific instance, indicating not only what remedies are called for in the individual case, but also how the problem should be dealt with more generally by the country concerned. Pending the outcome of the state's reaction, all other comparable cases are put on a hold.

In the context of the "Bug River" cases, the pilot case was Broniowski. That case was declared admissible in 2002 and the Grand Chamber held in its judgment in 2004 that Poland had violated Article 1 of the Convention's First Protocol (protection of property) and had to amend the compensation scheme to make sure that proper compensation for claimants was put into place. Appropriate action was indeed taken and in 2005 the Court accepted the friendly settlement reached between Broniowski and the Polish state. It expressed its positive attitude towards the general measures that Poland was taking at the time. The real test came, however, when the Court turned to all the comparable pending cases: in 2007 struck out two cases, Wolkenberg and Others and Witkowska-Tobola, out of its list. It is in those decisions that the most elaborate assessment of the Polish compensation scheme can be found. After those two decisions, the door was wide open for striking out large numbers of cases. And now the last batch has been struck out. Of course, it is still up to the Council of Europe's Committee of Ministers to monitor the situation in Poland on this account. But for the time being, the pilot case procedure seems a relatively efficient way to deal with at last part of the Court's backlog of cases.

Is this the end of the story? The Court seems to be cautious; in its press release the following can be read:

Similar complaints continue, however, to be lodged every month and as a result the Court is called upon to give individual decisions in cases where the Convention issue has been resolved at domestic level. The Court does not therefore rule out in the future declining to examine such cases.
Certainly to be continued....

Friday, 3 October 2008

Article on Rights of 'Travelling Peoples'

The most recent issue of the Human Rights Law Review (volume 8, no. 3, 2008) contains an article on one of my areas of particular interest: Ralph Sandland, Developing a Jurisprudence of Difference: The Protection of the Human Rights of Travelling Peoples by the European Court of Human Rights. It traces the changing stance of the European Court of Human Rights on the duties State Parties to the Convention have vis-à-vis travelling (minority) peoples. The cases on Roma rights are a prime example of the issue. This is the abstract:

This article reviews the development of the jurisprudence of the European Court of Human Rights (the Court) relating to the rights of Travelling Peoples. In its early case law on this topic, the Court's approach, in accordance with the principle of the rule of law, was to ensure equality of treatment. This approach appears laudable, but in practice it functioned as a failure to protect difference, or identity, especially minority identities; or, when difference was recognised, it was recognised as a problem. However, the Court has more recently undertaken a reappraisal of its approach. In essence, and although there may be scope for further development, the Court has moved to abandon a jurisprudence of sameness or equality in favour of elaborating a jurisprudence of difference. The Court now recognises that law applies differentially by reference to culture and ethnicity, and also that there are various positive obligations under the European Convention of Human Rights (the Convention) to protect difference, or minority identities, from both direct and indirect discrimination.
The article is available on the site of the Human Rights Law Review for subscribers.

Thursday, 2 October 2008

Judgment on Apology of Terrorism

Cartoons are, as we have seen in recent years, not always completely innocuous. Today the European Court of Human Rights delivered its judgment in a case focusing on the controversy about a cartoon depicting the terrorist attacks on the World Trade Center in New York with the text "We have all dreamt about it ... Hamas did it". The cartoon was drawn on 11 September 2001 itself, just hours after the attacks, by French cartoonist Denis Leroy, and published two days later in a Basque magazine with its basis in the southwest of France. The French authorities prosecuted both the cartoonist and the magazine and national courts fined Leroy with a 1500 euro fine for complicity in the defense or apology of terrorism.

Leroy tried his luck in Strasbourg, complaining that the imposition of the fine was in violation of Article 10 ECHR (freedom of expression). The Court, unanimously, disagreed. It held that the interference in this case served the legitimate aims of public safety and the prevention of disorder or crime in the sensitive context of the fight agaisnt terrorism. In a telling obiter dictum, the Court comments that the attacks of 11 September 2001 yielded a "global chaos". Although the applicant claimed that his cartoon merely expressed his political stance of anti-Americanism in a satirical manner and served to illustrate the decline of "American imperialist power", the Court noted that the cartoon also glorified the destruction of America by violent means. According to the Court, the caption accompanying the cartoon reflected Leroy's solidarity with the alleged attackers of the WTC and a favorable opinion on the large-scale violence used against civilians. The Court also noted the context: the drawing and publication in the immediate aftermath of the attacks and possible impact of such a message in a politically sensitive region, the Basque country. The reactions of readers of the magazine, which were subsequently published, pointed in that reaction. The Court, in conclusion, did not judge the fine to be excessive.

Interestingly, France tried to have the case declared inadmissible for abuse of rights (Article 17) by the applicant. This Article has thusfar mainly been used in the context of Holocaust denial. On this aspect, the Court disagreed with the State Party. It considered that the core message of the cartoon, the destruction of American imperialism, does not concern the destruction of fundamental rights nor can it be equalled to expressions of racism attacking the underlying values of the Convention. Moreover, the Court held that even if the expression had been labelled as an apology of terrorism under national law, the cartoon did not amount to an absolute justification of terrorism which would deprive it of the protection of Article 10.

Considering the fact that laws on the prohibition of the apology of violence (and especially terrorism) are currently being debated in many European countries, this judgment may be of considerable impact.

The judgment in this case is available only in French. A short report on this issue by the famous French newspaper Le Monde can be found here.

Wednesday, 1 October 2008

Interpretation of International Humanitarian Law

Still catching up on recent Court judgments, allow me to highlight a recent Grand Chamber decision of the Court. In Korbely v. Hungary the Court found a violation of Article 7 ECHR (no punishment without law) by eleven votes to six. The applicant had participated in quelling a riot in Hungary during the failed 1956 revolution against the communist rulers. He was the captain of a squad that killed a number of people, some of which were armed. To summarise the decision in one sentence: the Court concluded that Korbely's acts did not satisfy all the elements of a crime against hmunanity as valid at that time. The dissenting opinions focus, amongst others, on interpretations of international humanitarian law, the validity of which I will leave to experts in that field. Once again, the judgments shows the difficulties confronting a human rights court when venturing into neighbouring fields of international law.

Election of Judges

Yesterday, the Parliamentary Assembly of the Council of Europe, re-elected the Luxemburg judge at the Court, Dean Spielmann, for a new term. He was elected out of a list of three candidates by 86 out of 126 votes cast. His new term will end 31 October 2013. Judge Spielmann joined the Court in June 2004.

During the same session the Parliamentary Assembly adopted an important change in its policy on electing judges to the Court. Since 2004 the Assembly had refused to consider lists of candidates on which only one sex was represented. The underlying aim was to achieve a balance of gender in the Court. Earlier this year, the Court, in an Advisory Opinion held that this policy was incompatible with the Convention. As a result, the Assembly has now decided to consider single-sex lists of (three) candidates "in exceptional cases, where all the necessary and appropriate steps have been taken to include the under-represented sex." In practice this entails that very small state parties to the Convention (e.g. Liechtenstein or Malta) could submit such single-sex lists if they can show that they have done a thorough job in looking for suitable candidates fo both sexes.