Monday, 30 January 2012

Video on Admissibility Criteria

In its continuing quest to better inform citizens of the possibilities and limits of the European human rights protection system, the Court has launched yet a new tool: a short youtube movie which in about three minutes - and with the generous support of the Principality of Monaco, not the state that causes the Court the biggest caseload troubles! - shows what the main admissibility criteria are. Another creative tool!

For the French version, see here.

Friday, 27 January 2012

The Court's Annual Report 2011

Today, at the opening of the judicial year in Strasbourg, the Annual Report and an overview of facts and figures for 2011 were presented. This includes a table of violations (by country). It reveals that the top five of countries against which judgments were issued are: Turkey (174 judgments), Russia (133), Ukraine (105), Greece (73) and Romania (68). If there would not only be credit ratings for countries, but also judicial ratings, these numbers would be a good starting point, especially considering that most of the violations found relate to unfair trials, overly lengthy judicial proceedings and lack of effective remedies (Articles 6 and 13 ECHR).

Very helpfully, the Annual Report includes an overview of the main judgments and decisions of 2011 - for anyone who spent a year in splendid isolation or for those who want to get a quick update on the Court's work. This also shows the productivity of the Court: slightly less judgments and more decisions. As the report states:

In 2011 the Court delivered a total of 1,157 judgments, compared with 1,499 judgments delivered in 2010. In fact, in 2011 a greater number of applications were resolved by a decision. 875 judgments were delivered by Chambers and 269 by Committees of three judges. 13 judgments on the merits were delivered by the Grand
Chamber. 1,860 applications were declared inadmissible or struck out of the list by Chambers.

In 2011, 46.6% of all judgments delivered by a Chamber were categorised as being of high or medium importance in the Court’s caselaw database (HUDOC)2. All Grand Chamber judgments are of highlevel importance in HUDOC. In 2011, those judgments classed as importance level 1 or 2 represented 36.39% of all judgments delivered
during the year, a slight increase when compared with the figure of 32.5% from the previous year. As to the rest, 736 judgments concerned so-called “repetitive” cases with a low level of importance (level 3).

The majority of decisions published in 2011 in the Court’s case-law database concerned so-called “repetitive” cases.
In the press conference yesterday, the president of the European Court, Sir Nicolas Bratza, noted the successes - amongst others an increase of 30% of applications disposed of under the Single Judge filtering mechanism since the implementation of Protocol 14 - but also issued two cautionary notes. One on the position of human rights in general:

Human rights, the rule of law and justice seem to be slipping down the political agenda in the current economic climate. It is in times like these that we must remember that human rights are not a luxury and that the burden of their protection must be a shared one. We must continue to ensure that the Court remains strong, independent and courageous in its defence of the European Convention on Human Rights. But, of equal importance is the fact that the Court should be able to assume the supervisory role for which it was designed. This it can only do with the help of the 47 European governments which have ratified the Convention.

And one on the atttitude of state parties towards the Court:

Its independence and authority should not be undermined and that criticism by governments, even where legitimate, should rely on reasoned argument rather than emotion and exaggeration.
See also the reporting in the Guardian in the overview article 'European Court of Human Rights: which countries get the most judgments?'.

Thursday, 26 January 2012

Once in a Generation?

Yesterday, Prime Minister David Cameron of the United Kingdom - which is currently chairing the UK - addressed the Parliamentary Assembly of the Council of Europe. The main part of the speech concerned the European Court of Human Rights. Cameron packed his by now well-known cricitisms about the Court in praise, calling it "a beacon for the cause of human rights, ruthlessly focussed on defending human freedom and dignity, respected across the continent and the world." The Court should, in his view, not turn into a court of fourth instance nor be an immigration tribunal nor meddle to much with national affairs. In a telling paradox, Cameron said:

And we are hoping to get consensus on strengthening subsidiarity – the principle that where possible, final decisions should be made nationally. It is of course correct that the Court should hold governments to account when they fail to protect human rights. In these instances it is right for the Court to intervene.
The whole speech comes across as a mixture of praise and warnings, the latter ones all too familiar to anyone who has been following the debates in the United Kingdom on the Court. Concrete proposals for new reforms will follow in the course of the UK Chairmanship.

A day ahead of the speech, the Court's President, Sir Nicholas Bratza, already 'pre-acted' to Cameron's statements through an article in the Independent newspaper, entitled 'Britain should be defending European justice, not attacking it'. Bratza argues that many of the UK criticisms are based on misunderstandings on the role of the Court. On the Court's alleged encroaching upon sovereignty, Bratza puts matters into perspective:

The criticism relating to interference is simply not borne out by the facts. The Strasbourg Court has been particularly respectful of decisions emanating from courts in the UK since the coming into effect of the Human Rights Act, and this because of the very high quality of those judgments. To take 2011 as the most recent example: of the 955 applications against the UK decided, the Court found a violation of the Convention in just eight cases.

For more press coverage, see here (BBC) and here (The Guardian). These also refer to opposition and NGO reactions to Cameron's speech.

Cameron talked about "the once-in-a-generation chance we have, together, to improve the way we enhance the cause of human rights, freedom and dignity." His remarks and criticisms do not come as a surprise and it certainly is not the first time in a generation we have heard him say it nor probably the last time ...

Wednesday, 25 January 2012

PACE Resolution on Authority and Effectiveness of ECHR

Yesterday, the Parliamentary Assembly of the Council of Europe (PACE) adopted the report 'Guaranteeing the authority and effectiveness of the European Convention on Human Rights', on which I earlier blogged here in November. The accompanying resolution (No. 1856) calls, as by tradition one can almost say, for enhanced national (parliamentary) oversight. I reproduce it here in full:

1. The Parliamentary Assembly pays tribute to the extraordinary contribution that the European Court of Human Rights (“the Court”) has made to the protection of human rights in Europe. In so doing, it recognises the subsidiary nature of the supervisory mechanism established by the European Convention on Human Rights (ETS No. 5, “the Convention”), notably the fundamental role which national authorities, namely governments, courts and parliaments, must play in guaranteeing and protecting human rights.

2. The Assembly reiterates that the right of individual application, which lies at the heart of the Convention machinery, has to be preserved in essence, and that the Court must be in a position to dispose of applications within a reasonable time, while maintaining the quality and authority of its judgments. It follows that priority must be given to difficulties encountered in states which do not appropriately implement Convention standards. Therefore, the Court should be encouraged to continue to prioritise cases in line with its recently adopted policy.

3. From this, it transpires that, in order to ensure the long-term effectiveness of the Convention system, there is a need to strengthen and enhance the authority of Convention rights at the national level (including the res interpretata authority of the Court’s case law), to improve the effectiveness of domestic remedies in states with major structural problems, and to ensure rapid and effective implementation of the judgments of the Court. National parliaments can play a key role in stemming the flood of applications submerging the Court by, for instance, carefully examining whether (draft) legislation is compatible with Convention requirements and by ensuring that states promptly and fully comply with the Court’s judgments.

4. In this connection, the Assembly reiterates its call for parliaments to establish appropriate internal structures to ensure rigorous and regular monitoring of states' compliance with international human rights obligations (Resolution 1823 (2011) “National parliaments: guarantors of human rights in Europe”) and, in particular, effective parliamentary oversight of the implementation of the Court’s judgments (Resolution 1516 (2006) on the implementation of judgments of the European Court of Human Rights, paragraph 22.1).

5. As the post-Interlaken debate on the future of the Convention system does not sufficiently take into account the role of parliaments (Resolution 1823 (2011), paragraph 5.2), the Assembly, as well as national parliaments, must ensure that they are provided with an opportunity to scrutinise reports which member states have been required to submit to the Committee of Ministers on national implementation of relevant parts of the Interlaken and Izmir Declarations.

6. Finally, the authority and effectiveness of the Convention system are contingent on the political will and commitment of member states to provide the Organisation with the appropriate financial means to implement its human rights mandate. The difficult budgetary predicament in which the Council of Europe finds itself must be given urgent attention in member states, especially the legislative branches of state authority, given the latter’s decisive role in the determination of state budgetary appropriations.

Thursday, 19 January 2012

And More New ECHR Publications

And yet another batch of new ECHR-related books and articles. The first is a book on freedom of expression and minorities, written by colleague and friend Tarlach McGonagle of the University of Amsterdam. Its entitled 'Minority Rights, Freedom of Expression and of the Media: Dynamics and Dilemmas' and was published with Intersentia. Congratulations, Tarlach! This is the abstract:

This book offers a rigorous, theory-based, and uniquely comprehensive, analysis of European and international legal standards shaping minorities’ right to freedom of expression. The analysis pays particular attention to the instrumental role played by traditional and new forms of media in ensuring that the right to freedom of expression of persons belonging to minorities is effective in practice.

The relevant international legal framework is set out in detail, including a careful examination of the relationship between generalist and minority-specific international human rights instruments. Due attention is paid to the historical circumstances in which key instruments were developed and the contemporary context in which they are now being interpreted. The analysis is also informed by an awareness of institutional and political dynamics. All of this forms the basis for the book’s central objective: to mount a critical evaluation of the existing international legal framework governing freedom of expression for minorities, while drawing on theoretical insights gained from human rights scholarship and communications science.

The first major focus of the evaluation is the regulation and restriction of expression to protect minority rights, in which issues such as pluralism, tolerance and “hate speech” feature centrally. Its second major focus, the regulation and facilitation of expression to promote minority rights, explores cultural and linguistic rights and media access questions.

The book provides detailed analysis of the European Court of Human Rights’ case-law on each of these themes.
The second is a publication on SSRN relating to the convictions of Khodorkovsky and Lebedev in Russia, dealing with the ECHR aspects of those cases. It was authored by Jeffrey Kahn of Southern Methodist University. This is the abstract:

This report resulted from an invitation received on April 1, 2011 from the Presidential Council of the Russian Federation for the Development of Civil Society and Human Rights "to participate in an independent public expert analysis of official documents and proceedings in the recent criminal case concerning M.B. Khodorkovsky and P.L. Lebedev, who were convicted by a judgment announced on December 27, 2010." The report was submitted to the Council on October 1, 2011. It was the only report submitted from the United States, the other reports having been sought and received from scholars in Russia, Germany, and the Netherlands.

On December 21, 2011, the Council released this report in Russian along with the reports of the other scholars. On the basis of these reports, the Council recommended that legal proceedings begin to annul the convictions.

This report evaluates the verdict in the case for compliance with Russia's obligations under the European Convention on Human Rights. The report concludes that the verdict in this case reveals violations of the defendants' human rights protected under Articles 3, 6 and 7 of the Convention and that other Convention rights also may have been violated.
Finally, the 2010(!) edition of the Italian Yearbook of International Law has now been published. It is focused on the future of the ECHR system. These are the contributions:

◦Giuseppe Cataldi, Presentation of the Symposium

◦The ECHR System and International Law
◦Raffaella Nigro, The Notion of “Jurisdiction” in Article 1: Future Scenarios for the Extra-Territorial Application of the European Convention on Human Rights
◦Ottavio Quirico, Substantive and Procedural Issues Raised by the Accession of the EU to the ECHR
◦Beatrice I. Bonafè, The ECHR and the Immunities Provided by International Law

◦Pasquale De Sena, The Notion of “Contracting Parties’ Jurisdiction” Under Article 1 of the ECHR: Some Marginal Remarks on Nigro’s Paper
◦Benedetto Conforti, Comments on the Accession of the European Union to the ECHR
◦Emilio De Capitani, EU Accession to the ECHR: A Parliamentary Perspective
◦Marco Gestri, Access to a Court and Jurisdictional Immunities of States: What Scope for the Balancing of Interests Test?

◦General Aspects of the Functioning of the ECHR System
◦Antonio Bultrini, The European Convention on Human Rights and the Rule of Prior Exhaustion of Domestic Remedies in International Law
◦Simona Granata, Manifest Ill-Foundedness and Absence of a Significant Disadvantage as Inadmissibility Criteria of Inadmissibility for the Individual Application to the Court
◦Andrea Caligiuri & Nicola Napoletano, The Application of the ECHR in the Domestic Systems

◦Guido Raimondi, Reflections on the Rule of Prior Exhaustion of Domestic Remedies in the Jurisprudence of the European Court of Human Rights
◦Françoise Tulkens, The Link Between Manifest Ill-Foundedness and Absence of a Significant Disadvantage as Inadmissibility Criteria for Individual Applications
◦Pasquale Pirrone, The Value of the Judgments of the European Court of Human Rights for the Courts of the Respondent State: Domestic Judicial Decision in Favour of the Applicant and the Principle of “Doing as Much as Possible”

◦General Conclusion on the Symposium
◦Jean-Paul Costa, Concluding Remarks on the Future of the Strasbourg Court

Wednesday, 18 January 2012

Report Wilton Park on Future of European Court

Last November, a big conference was held at Wilton Park in the United Kingdom. It was an international informal discussion meeting between national judges and parliamentarians, state representatives, Council of Europe and Court offocials and civil society experts on discussing the future of the European Court of Human Rights. The report of the meeting is entitled '2020 Vision for the European Court of Human Rights'. According to the organisers, key issues discussed included the following:

* Challenges currently facing the Convention system, including the Court’s workload and the backlog of pending applications, systemic violations and the role of the Court, the resources available to the Court, the relationship of the Court to national parliaments and national legal systems, public perceptions of the Court and the need for greater political will on the part of governments to secure the rights and freedoms of the Convention;

* Ways of addressing the present and likely future demands made on the Court, including building on the reforms introduced in recent years, strengthening national implementation of the Convention, in particular the execution of judgments, and how best to drive forward the urgent need for reform, reaching a balance between incoming cases and judgments, on a manageable level, and lower than that of today, in a reasonable time without weakening the human rights protection the Convention affords.

Tuesday, 17 January 2012

New Working Paper on Margin of Appreciation

Paul Gallagher, associated to the University College Dublin, has posted a working paper on the Court and the margin of appreciation on SSRN. It's entitled 'The European Convention on Human Rights and the Margin of Appreciation'. This is the abstract:

The debate as to whether courts are too eager, or not eager enough, in holding that government regulations violate individuals’ fundamental rights has raged across decades and across jurisdictions. The underlying considerations are particularly acute when the courts concerned are supranational courts – and thus further removed than national judges from the societies affected by their judgments. The European Court of Human Rights has grappled with this issue by developing the concept of a margin of appreciation and thereby according to Contracting States an element of judgment in securing the rights enshrined in the Convention. The margin of appreciation has been central to the jurisprudence of the Court and is of major importance to the Contracting States. It has assumed even more significance as the Court through its case law has expanded Convention rights. This paper focuses on the use by the Court of the concept of a margin of appreciation and considers, in particular, whether the use of that concept provides a sufficient safeguard against what some people see as an overactive court which has interpreted the Convention in a manner that the original Contracting States could never have envisaged.

Monday, 16 January 2012

Articles in EHRLR

Three issues of the European Human Rights Law Review of 2011 (on which issues I did not yet report) include a number of articles on the European Convention on Human Rights. Here is an overview. In issue 3:

* Sophie Briant, Dialogue, diplomacy and defiance: prisoners' voting rights at home and in Strasbourg.
In issue 4:

* Maria Suchkova, An analysis of the institutional arrangements within the Council of Europe and within certain Member States for securing the enforcement of judgments
In issue 5:

* Baroness Hale, Common Law and Convention Law: The Limits to Interpretation.

* David Mead, "Don't make us get a warrant... we only want a quick look in your husband's shed": The Article 8 Issues Raised by the Domestic Legal Framework on Police Entries and Searches by Consent.

* Max Schaefer, Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction.
The latter issue also includes an article by the Court's president Sir Nicholas Bratza, noted here earlier.

Friday, 13 January 2012

Blog on ECHR and Poland

The ever-expanding blogosphere, specifically the one on human rights, has a new offshoot: Etpcz Blog, a blog on the European Convention on Human Rights in Polish. The blog was created two months ago by Robert Rybski of Warsaw University. Its aim is to cover Polish aspects of the ECHR for a Polish audience and in doing so making the Court's case-law more accessible to Polish practioners. Congratulations, Robert, and keep up the good work!

Wednesday, 11 January 2012

New Academic ECHR Publications

At the start of the new year a very wide range of articles and publications on the European Convention and the European Court (see the overview below). A very good year to all readers!

* Yonatan Lupu and Erik Voeten, 'Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights', British Journal of Political Science (December 2011).

Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince ‘lower’ (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways.

* Maria Zhurnalova-Juppunov, 'Religious Displays at Public Schools – Courts, Crucifixes and Masters of Identities', Maastricht Journal of European and Comparative Law, Volume 18.

Abstract: This contribution compares the judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in the case of Lautsi v. Italy with the decision of the German Federal Constitutional Court in the Classroom Crucifix case. An examination of the way that the courts dealt with the common issues of state neutrality in education, parents’ rights to direct the religious education of their children, students’ right to religious freedom, as well as of the consistency of the rulings with relevant case law, reveals that the ECtHR’s Grand Chamber rendered a judgment open to criticism on a number of grounds. It erroneously conflated state action interfering with the applicant’s rights with the exercise of some ‘collective’ rights and liberties. The mis-characterization of the crucifix as a ‘passive symbol’ led the ECtHR to trivialize or disregard the effects of the crucifix on dissenting students and the state neutrality mandate in public education. Finally the judgment is not consistent with the relevant case law of the Court and the application of the doctrine of the margin of appreciation has served to weaken its role as Europe’s ‘ fundamental rights protector’, seeming to be a means through which the Court has gracefully given in to ‘popular sentiment’. The contribution concludes by offering a ‘pluralist approach’ as a legislative framework for regulating the display of religious symbols in public schools

* Paul Johnson, 'Heteronormativity and the European Court of Human Rights', Law and Critique (January 2012).

This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.

Monday, 9 January 2012

New Book on Court After Protocol 14

Last year in May, the University of Fribourg organised a conference on the European Court's future after Protocol 14. The conference book, edited by Samantha Besson, is out now and is entitled 'La Cour européenne des droits de l'homme après le Protocole 14 / The European Court of Human Rights after Protocol 14'. It includes contributions by Luzius Wildhaber, Helen Keller, Philip Leach, Elisabeth Lambert Abdelgawad and many others. This is the abstract:

After many years of uncertainty, Protocol 14 to the European Convention on Human Rights finally entered into force on 1st June, 2010. It brings about some important and well-known amendments to the European Court of Human Rights’ functioning. Those reforms should help the Court deal with some of the serious difficulties and backlog it has been facing to date. The Protocol also generates its own set of new difficulties, however, as many procedural and substantive issues were not settled by the updated version of the Rules of court and will have to be addressed in practice.

Moreover, as foreseen by certain specialists, many other fundamental reforms are needed to make the Court more effective and a Protocol 15 is allegedly already under consideration. The present publication has two aims. It aims, first of all, at developing a general assessment of the main improvements to the Court’s functioning one year after the entry into force of the Protocol, but also at identifying some issues where further reforms are needed. A second aim is to examine the Declaration and Action Plan that was adopted on 19th February, 2010 at the Interlaken Conference on the Future of the European Court of Human Rights and under the Swiss Chairmanship of the Council of Europe. Different measures listed in the Action Plan are discussed and suggestions made as to how to best implement them.