Wednesday, 29 February 2012

Draft Declaration on British ECHR Reform Plans Leaked

The French and English versions of the draft of the so-called 'Brighton Declaration' (the seaside city where state parties to the ECHR will meet in April to discuss reforms of the Court and the Convention) have been leaked after the UK government refused to publicly circulate the text. Last week, the draft was presented to the Ministers' deputies of the Council of Europe. Amongst other, the draft suggests to include the principle of subsidiarity and the margin of appreciation explicitly in the Convention text - I am not sure what that would change to current practice, unless it becomes mandatory for the Court to give a margin of appreciation. Also, the time to lodge complaints after all domestic remedies have been exhausted would possibly be reduced from the current six months to two, three or four months. One of the most controversial aspects is that the Court would be barred from considering cases "identical in substance to a claim that has been considered by a national court", according to BBC reporting, unless "unless the national court “clearly erred” in its interpretation, or raises a serious question affecting the interpretation of the Convention" according to the Open Society Institute. This would carry in it the danger of almost completely taking away any substantive role for the European Court of Human Rights. It also suggests the possibility to appoint more judges to deal with a larger amount of cases and to introduce a possibility of advisory opinions to national courts, somewhat comparable to preliminary rulings of the European Court of Justice. Thus, the proposals seem to present a very mixed bag (many more than I could mention here) of efficiency enhancing measures and potentially dangerous ideas which would undermine human rights protection by curtailing the Court and access to it for victims.

Obviously, for Convention changes unanimity is needed. Even if the United Kingdom, and in its slipstream the Netherlands, seem to take a tough stance towards the Court, Belgium, Germany, and Austria seem to be opposed to curtail the Court's supervisory role in human rights protection. France seems to linger between indifference and sympathy for the British plans, according to Le Monde.

According to the Open Society Justice Initiative, this is the Court's own position:

Opinion of the Court
On 20 February 2012 the European Court of Human Rights sitting in Plenary issued an opinion in preparation for the Brighton Conference, responding to the proposals of State Parties. The Court does not offer a definition of subsidiarity, but does suggest that States must reaffirm their commitment to the system of human rights protection, which requires “making every effort to secure the Convention rights and freedoms at national level and accepting that these efforts are subject to judicial scrutiny at European level”. In a separate speech the President of the Court said that subsidiarity and the margin of appreciation should not be put in the Convention. The Court is unconvinced that the proposed new admissibility criteria “will have any significant impact on the Court’s case-load” as such cases would require “systematic and thorough examination.” Such options might be considered for the long-term reform of the Court, together with the possibility of the court selecting cases for adjudication, where there was an option of referring the cases not taken to another international process or to a national mechanism. The Court identifies four types of cases where reform is needed, and makes initial proposals for reform.

* Inadmissible Cases (Categories VI and VII). The Single Judge procedure will continue to be used. In addition, the Court is considering expanding the new filtering procedure to all countries and applying the six-month rule more strictly, which could be “reduced considerably” given modern communication methods.

* Repetitive Cases (Category V). There are 34,000 of these cases in the system. The Court proposes that a list of the cases is referred to the State concerned for them to be settled in an appropriate way, with judgment to be given in default if redress is not given.

* Non-repetitive, non-priority cases (Category IV). (19,000 cases). The Court proposes to extend the use of the summary procedure for cases that can be dealt with by “Well-Established Case-Law” currently used only for repetitive cases.

* Priority Cases (Categories I, II, III). (6,000 cases). Some will also be repetitive, such as prison condition cases.
The full text of the Court's opinion can be read here. See also the analysis of Noreen O'Meara of the University of Surrey on UK Constitutional Law Group Blog.

So who knows, we might - after all the obstacles of getting the previous change to the Convention ratified - be on our way to a Protocol 15! To be continued and watched closely ...

Tuesday, 28 February 2012

Handbook on Monitoring ECHR Judgment Implementation

Translated editions of the handbook 'Monitoring the Implementation of the Judgments of the European Court of Human Rights' are now available online in German, Croatian and Turkish. The book, written by Basah Cali and Nicola Bruch of University College London, is meant for practitioners "finding the execution process in Strasbourg difficult to understand and follow." In a very accessible way, this small online book informs the reader with practical information about how implementation works and what role NGOs can play in monitoring the aftermath of judgments.

Monday, 27 February 2012

New ECHR-related Articles

The newest edition of 'current contents on human rights' of my home base SIM (Netherlands Institute of Human Rights at Utrecht University) include a number of academic publications related to the ECHR:

* A. Wiesbrock, 'The right to family reunification of third-country nationals under EU law: is Directive 2003/86/EC in compliance with the ECHR?', Human Rights & International Legal Discourse, vol. 5, no. 2 (2011) pp. 138-165.

* C. O’Mahony, 'Irreconcilable differences? Article 8 ECHR and Irish law on non-traditional families', International Journal of Law, Policy and the Family, vol. 26, no. 1 (2012) pp. 31-61.
Finally, the European Voice (online newspaper) has an opinion article on the United Kingdom's attitude towards the Court:

* Nicolas Beger, 'A proposal to restrict human rights'.

Friday, 24 February 2012

Boat Migrants Grand Chamber Judgment

Yesterday, the Grand Chamber of the European Court of Human Rights delivered judgment in an important case about one of the most topical migration issues: irregular migrants intercepted in the Mediterranean by ECHR state parties. In the case of Hirsi Jamaa and others, the Court found, unanimously, that Italy had violated three Articles of the ECHR.

The applicants in the case were 11 Somalians and 13 Eritreans who had been intercepted by the Italian coastguard in May 2009 when trying to cross the Mediterranean. They were brought to Tripoli in Libya and handed over to the Libyan authorities under an Italo-Libyan agreement. Their identities were not checked during their time on board of the Italian vessels.

First, the Grand Chamber had to decide whether the applicants fell within Italy's jurisdiction (Article 1 ECHR). Italy denied that by taking them on board it had excercised "absolute and exclusive control" over the applicants. Rather, it argued that it had been obliged under the UN Convention on the Law of the Sea to save human lives on the high seas. This in itself, in Italy's view, did not create a jurisdictional link between Italy and the rescued. The Grand Chamber disagreed. Firt, it confirmed that under the law of the sea, and under Italian law for that matter, a ship on the high seas is under the exclusive jurisdiction of the flag state. Secondly, states cannot avoid being held responsible under the ECHR by framing an act as a rescue operation under the law of the sea. Thirdly, the events took place on vessels of Italy's armed forces manned by a crew of Italian military personnel. The applicants were thus under continuous and exclusive de jure and de facto control of Italy. Thus, they fell within the jurisdiction of that state for the whole period that they found themselves on those Italian vesssels. One could say here, that a causal legal chain of events starts to operate once a ship operated by a state party's authorities catch sight of a group of people in danger at sea: the law of the sea requires to save them and as a result these people are brought within the jurisdiction of that state under the ECHR. Put differently, any state attempt to push back irregular migration at sea rather than on land does not absolve a state from its human rights responsibilities.

Once this preliminary matter was solved, the Court turned to the complaint of the violation of non-refoulement (the prohibition of being sent back to places where there is a real risk of inhuman or degrading treatment). The Court found two violations of Article 3 ECHR. First, it concluded that Italy had violated the Convention by exposing the applicants to danger in Libya itself. According to many reliable UN, Council of Europe, and NGO sources, even in the Spring of 2009, it was "well-known and easy to verify" (para. 131) that irregular migrants faced great dangers in Libya. The fact that Libya had assured Italy in a bilateral agreeement that it would deal with such migrants in conformity with international law did not detract from that. Crucially, even if the persons involved do not explicitly ask the state on whose ship they find themselves for asylum, it is still the state's own obligation under the ECHR to check whether they would not face treatment in violation of article 3. Again, this is very important in practice: by just avoiding to even try to find out rescued people's nationality or legal status, a state cannot avoid being held to account under the European Convention. Secondly, it also found a violation by the fact that he applicants had been exposed to the risk of being sent onwards from Libya (the intermediary country) to their countries of origin: Somalia and Eritrea. It is for the state (para. 147):

to ensure that the intermediary country offers sufficient guarantees to prevent the person concerned being removed to his country of origin without an assessment of the risks faced. The Court observes that that obligation is all the more important when, as in the instant case, the intermediary country is not a State party to the Convention.(emphasis added)
First off, the Court noted that both countries, Eritrea and Somalia, faced "widespread serious problems of insecurity" (para. 151). Secondly and crucially, Italy (para. 156):

knew or should have known that there were insufficient guarantees protecting the parties concerned from the risk of being arbitrarily returned to their countries of origin, having regard in particular to the lack of any asylum procedure and the impossibility of making the Libyan authorities recognise the refugee status granted by the UNHCR.
Thus, states cannot simply wash their hands of a situation like this by failing to acquire information.

Also, the Court for the second time ever found a violation of the prohibition of collective expulsion of aliens (Article 4 of Protocol 4) - the first time was in 2002 in the case of Čonka v. Belgium, on a group of expulsed Slovak Roma. In Hirsi Jamaa, the Court for the first time had to decide whether this prohibition also applied to removing aliens extraterritorially. It answered that question in the affirmative: Article 4 Protocol 4 contains no reference to "territory" nor do the travaux préparatoires point in that direction. And then follows a very important paragraph in the Court's reasoning (para. 177):

The Court has already found that, according to the established case-law of the Commission and of the Court, the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority. If, therefore, Article 4 of Protocol No. 4 were to apply only to collective expulsions from the national territory of the States Parties to the Convention, a significant component of contemporary migratory patterns would not fall within the ambit of that provision, notwithstanding the fact that the conduct it is intended to prohibit can occur outside national territory and in particular, as in the instant case, on the high seas. Article 4 would thus be ineffective in practice with regard to such situations, which, however, are on the increase. The consequence of that would be that migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land.
Subsequently, by not carrying out any form of individual assessment whatsoever of the persons involved, the handing over of the applicants to Libya from the Italian ship amounted to a collective expulsion.

Finally, the Court found a violation of the right to an effective remedy (Article 13 ECHR) in conjunction with the aforementioned articles. The applicants had had no access to any procedure. There were no legal advisers or interpreters on board nor were they given informatino in general about what was going to happen.

As to the legal consequences, the Court ruled under Article 46 of the Convention (obligation to abide by the Court's judgments, a provision not applied very often) that Italy (para. 211) "must take all possible steps to obtains assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated." In addition, each applicant was awarded, under Article 41 ECHR, 15,000 euros for non-pecuniary damage suffered.

The Portuguese Judge Pinto de Albuquerque attached a long concurring opinion to the judgment which goes into the linkages between the international human rights law and international refugee law.

A very important judgment, upholding the absolute nature of the non-refoulement princile in the face of new ways of controlling migration flows by European states. Literally pushing back the problem further from a state's territory does not change that state's human rights obligations.

Call for Papers EU - ECHR

The Surrey School of Law and the Surrey European Law Unit (SELU) have issued a call for papers for an interdisciplinary workshop entitled ‘A Europe of Rights: the EU and ECHR’. It will be held on 8 and 9 June. This is the call:

This workshop seeks submissions which assess the relations between the European Union and the European Convention of Human Rights. It aims to stimulate a debate on both the successes and challenges of the EU-ECHR relationship. The workshop is aimed at young as well as established scholars with an interest in human rights law and policy.

Papers are invited on themes such as, but not limited to, the following aspects:

· Accession of the EU to the ECHR: technical and institutional issues

· Substantive questions related to the jurisprudence of the CJEU and the ECtHR

· Potential lacunae in the EU’s protection of fundamental rights

· Application of ‘European’ human rights law by national courts

· Legitimacy of ‘European’ human rights adjudication.

Applicants are asked to submit an abstract of no more than 400 words on their proposed papers. We are delighted to announce that selected papers will be published (subject to editorial review) in a special edition of the Surrey Law Working Paper Series.

The deadline for submission of abstracts is Friday, 30 March 2012. Successful applicants shall be notified no later than 10 days of this date. The full-text papers are expected to be submitted no later than 15 May 2012.

Dean Spielmann, Judge of the European Court of Human Rights and President of Section V of the Court will deliver the keynote address on 8 June 2012.

We are happy to be in a position to award two scholarships of £250 each to participants who would otherwise not be able to attend the workshop. If you wish to be considered for a scholarship, please indicate this on your proposal and provide us with the reasons why you consider yourself eligible. Otherwise, we regret that we are generally not in a position to offer financial support for travel to the conference or for accommodation.

Abstracts should be submitted to: t.lock at (Dr Tobias Lock).

Wednesday, 22 February 2012

Newest Issue of HRLR

The newest issue of the Human Rights Law Review (vol. 12, issue 1, March 2012) is out now and includes a number of ECHR-related articles. First, the article 'Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?' by Baroness Brenda Hale, justice of the Supreme Court of the United Kingdom. This is the abstract:

This article takes its title from Lord Rodger's oft cited dictum in Secretary of State for the Home Department v AF (No 3): ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. The article focuses upon the following two questions: What should be the approach of the Supreme Court of the United Kingdom to interpretations of the European Convention on Human Rights by the Strasbourg Court and what should be the approach of the Strasbourg Court to the decisions of the highest courts in member states? On the first question, the ‘mirror’ approach and criticisms of it are considered and examples are given of the Supreme Court following its own, rather than a pan-European, approach. On the second question, the view of the new president of the Strasbourg Court is welcomed.
Furthermore two shorter articles:

* Petr Muzny, 'Bayatyan v Armenia: The Grand Chamber Renders a Grand Judgment'
* Christopher Michaelsen, ‘From Strasbourg, with Love’—Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights'

Monday, 20 February 2012

Anti-Gay Speech Judgment

In the recent case of Vejdeland and others v Sweden the Court for the first time issued a ruling on offensive speech in relation to sexual orientation. The case centered on the conviction of four men who had entered a secondary school and circa 100 leaflets in and on lockers of the school's pupils. The leaflets, made by the organisation 'National Youth' were vehemently anti-homosexual. They criticised what they called 'homosexual propaganda', calling homosexuality a 'sexual deviance' which had a 'morally destructive effect on the substance of society'. They stated that the 'promiscuous' way of life of homosexuals was one of the main causes of HIV/AIDS and that homosexual organisations were trying to 'play down peadophilia'. The applicants were convicted in Sweden for agitation against a national or ethnic group. Under Swedish law this anti-hate speech provision in the criminal code also related to threats or expressions of contempt directed against people with allusion to their sexual orientation.

The applicants lodged a complaint with the European Court of Human Rights arguing that the conviction violated their freedom of expression. They contended that their leaflets did not insult homosexuals and that, moreover, they were not aimed at spreading hatred but rather at encouraging discussion in schools on the issue and providing pupils with arguments in that discussion.

The European Court unanimously found no violation of the freedom of expression. Sweden had not overstepped the boundaries of the ECHR by combatting this form of hate speech. The Court accepted that the conviction constituted an interference with the freedom of expression under article 10 of the Convention, but that it had been lawful - the prohibition in the penal code being sufficiently clear and foreseeable - and had pursued the legitimate aim of protecting the 'reputation and rights of others'. On the latter point, the Court did not offer any further explanation - thereby not clarifying whether the impugned statements were potentially just hurtful to homosexuals or to society in general. This is a key point of principle in combating any form of hate speech.

As often, the Court's main assessment focused on whether the interference had been 'necessary in a democratic society'. It answered this question in the affirmative. It is here that the Court had to walk a fine line in deciding whether the leaflets were merely to 'offend, shock or disturb' (but still allowed) or rather were inciting to hatred. A number of elements were decisive in the Court's reasoning. First, the wording of the statements themselves amounted to 'serious and prejudicial allegations'. Although the leaflets may not directly have urged people to commit hateful acts, the Court referred to earlier case-law (Féret v. Belgium) in which it had held that 'inciting to hatred does not necessarily entail a call for an act of viooence or other criminal acts.' In addition, the statement of principle that discrimination on the basis of sexual orientation is as serious as racial or ethnic discrmination was extended from a right to private life context (Smith and Grady v. United Kingdom) to freedom of expression issues. A second decisive element in the Court's argumentation was the targeted audience of the leaflets - in the Court's words 'young people who were at an impressionable and sensitive age'. Thirdly, the protected context: a school, which was not attended by any of the applicants and to which they did not have free access. Fourthly, the Supreme Court of Sweden had weighed relevant aspect itself, including the finding that the statements on the leaflets had been 'unnecessarily offensive'. Finally, the height of the sentences: suspended fines and, in one case, probation: the Court did not find these excessive. In conclusion, the court found no violation of article 10 ECHR.

Although the judgment was unanimous, it apparently led to a lot of discussion in camera. no less than three different concurring opinions, by five judges in total, were added to the judgment. It shows the judicial and moral struggle the Court faced in deciding the case. As the above-mentioned contextual elements in the Cour't's balancing act show, the Court tried to make its reasoning as case-specific as it could, but it did not escape value-judgments in holding the leaflets to be unacceptable. Judges Spielmann and Nussberger point out that this would have necessitated stronger reasoning. For example, the Court should have assessed whether another aim was hidden behind the 'apparent aim' of initiating debate at school: an agenda to 'degrade, insult or incite hatred' against people on grounds of sexual orientation. The judges point out that not only do members of the LGBT commmunity continue to face 'deeply rooted prejudices, hostility and widespread discrimination all over Europe', but also that 'homophobic and transphobic bullying in education settings' is a real problem that may justify restirctions on the freedom of expression. A different contextual analysis with more emphasis on the LGBT context and the educational context would have strengthened the Court's judgment. I agree. Judges Yudskivska and Villiger go even a step further and argue that these forms of hate speech are not a mere balancing exercise between the people who express views and the people targeted by these views. Considering that hate propaganda always inflicts harm, one should not wait for 'real and immediate danger' to start combatting them. They warn of a climate in which matters which are no longer unspeakable are also no loger undoable. Thus, countering these expressions are a matter for all society, not just for the targeted group.

Leaving aside the contested argumentation on content, which indeed could have been more precise, the jugdment is still a very important milestone, both symbolically and in practice, in countering intolerance against people with different sexual orientations than the majority.

See also the recent fact sheet on hate speech on the website of the Court, which already includes the Vejdeland case. Recommended as well are reports by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, Interights (who also intervened in the case as a third party together with the International Commission of Jurists), and by colleague bloggers at Strasbourg Observers.

Friday, 17 February 2012

New Documents on Selection of Judges and Reform Measures Requiring ECHR Amendments

Two important documents of the Council of Europe's Steering Committee on Human Rights (CDDH), where much of the preparations for reforms happen, have been put online. The first are 'Draft Committee of Ministers’ Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights' accompanied by an Explanatory Memorandum. These contain detailed requirements on the selection process on the national level of candidates to the European Court of Human Rights. This is meant to enhance the transparency and quality of the selection process. Later on in the year, the Committee of Ministers will probably adopt these guidelines.

Secondly, as part of the Interlaken process, the CDDH has investigated which reforms would require amendments of the ECHR: 'Final Report on Measures Requiring Amendment of the European Convention of Human Rights'. It is meant to be considered by the Ministerial Conference organised by the United Kingdom Chairmanship of the Committee of Ministers on 18-20 April 2012. This very informative document encompasses a whole range of widely debated issues. This is the table of contents:

* CDDH Final Report on measures requiring amendment of the European Convention on Human Rights

* Appendix I: Terms of reference
* Appendix II: List of documents (selected reference texts)
* Appendix III: CDDH Report on measures to regulate access to the Court
- Section 1: A system of fees for applicants to the Court
- Section 2: Compulsory legal representation
- Section 3: Introduction of a sanction in futile cases
- Section 4: Amendment of the “significant disadvantage” admissibility criterion
- Section 5: A new admissibility criterion relating to cases properly considered by national courts
* Appendix IV: CDDH Report on measures to address the number of applications pending before the Court
- Section 1: Increasing the Court’s capacity to process applications
- Section 2: Introduction of a “sunset clause”
- Section 3: Conferring on the Court a discretion to decide which cases to consider
Appendix V: CDDH Report on measures to enhance relations between the Court and
national courts
- Extending the Court’s jurisdiction to give advisory opinions

Thursday, 16 February 2012

Paper on Compliance with ECtHR Judgments

Andreas Von Staden of the Department of Political Science of the University of St. Gallen has posted a paper on SSRN on conmpliance with the European Court's rulings, entitled 'Rational Choice within Normative Constraints: Compliance by Liberal Democracies with the Judgments of the European Court of Human Rights'. This is the abstract:

In this paper, I propose a hybrid constructivist-rationalist theory of compliance with the judgments of the European Court of Human Rights (ECtHR) and investigate its validity both quantitatively and qualitatively, based on a comprehensive database on the compliance status of all ECtHR judgments rendered up until 2010. While much research on state compliance with normative obligations has remained wedded either to a constructivist, norm-based perspective or to a rationalist analytic lens that foregrounds actor preferences and cost-benefit calculations, a fully specified model of compliance has to allow for the simultaneous operation of the logics of appropriateness and of consequences. Specifically, I argue that the question whether to comply with a judgment needs to be separated analytically from the question of how to comply. In the context of European liberal democracies, the first question is best answered by positing a normative compliance pull exerted by the judgments of a duly constituted court, even one operating beyond the boundaries of the state. At the same time, norms as well as the judgments that interpret and apply them frequently retain an element of indeterminacy that provides states with alternatives as to how to comply with a given judgment. In light of such a choice space, and given an assumed preference for the status quo ante, governments will tend to choose those institutional and interpretive options that minimize - materially and normatively - the domestic impact of an adverse judgment and will, as a result, in most cases choose narrow or otherwise restrictive compliance.

Tuesday, 14 February 2012

Seminar in London on the European Court

Next week, on Wednesday 22 February a seminar on the European Court of Human Rights will be organised at Europe House, Smith Square, Westminster in London. The seminar is entitled 'Some issues around Reform of the European Court of Human Rights'. This is the programme:

16.00 – 16.10 Introduction by Dr. Martyn Bond, Visiting Professor of European Politics and Policy at Royal Holloway, University of London, author of The Council of Europe: Structure, History, Issues, and UK Press Correspondent for the Council of Europe.

16.10 – 16.40 Baroness Sarah Ludford MEP, Liberal Democrat Justice and Human Rights Spokeswoman

Accession of the EU to the ECHR: what it will mean for Human Rights in Europe.

16.40 – 17.10 Lord Lester of Herne Hill, QC

What Reforms of the Court are really needed?

17.10 – 17.30 Dr. Daniel Holtgen, Spokesperson for the Secretary General, and Director of Communications, Council of Europe

After Reform: what future for the Council of Europe and the Court?

17.30 – 18.00 Question and Answer Session

18.00 – 18.45 Reception
One can register at the following email address: at – preferably before 20 February – to reserve a place as space is limited.

Monday, 13 February 2012

US Supreme Court and ECtHR Judges will meet in Washington DC

The US Department of State and George Washington University Law School are jointly organising a high-level conference in which several US Supreme Court justices will speak and discuss with several European Court of Human Rights Judges. The conference is entitled 'Judicial Process and the Protection of Rights: The US Supreme Court and the European Court of Human Rights' and will take place from 29 February to 2 March. From the Supreme Court Justices Samuel Alito, Stephen Breyer, Anthony Kennedy and Sonia Sotomayor will join and from the European Court (current and former) judges Bratza, Costa, Vajic, Tulkens and Garlicki. In addition the European Court's registrar and deputy registrar and several eminent European and American academics will be there. Please see the official announcement and programme here.

See an article on the conference here.

Wednesday, 8 February 2012

Speeches of Bratza and Hammarberg

I did not link to them yet, but at the opening of the judicial year in Strasbourg both the Court's President, Sir Nicolas Bratza, and the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, both delivered speeches.

Bratza for the first and also last time (his term as judge at the Court expires in Autumn) spoke as President of the Court. He started with an admonition, referring to the economic crisis:

The temptation is to be inward-looking and defensive, for States as well as individuals. Human rights, the rule of law, justice seem to slip further down the political agenda as Governments look for quick solutions or simply find themselves faced with difficult choices as funds become scarce. It is in times like these that democratic society is tested. In this climate we must remember that human rights are not a luxury.
And he also put matters in perspective: yes, the Ccourt has problems with a large case-load and has therefore been compared to a patient with an illness, but there are also "healthy signs of life": a substantive number of judgments continues to be delivered, inadmissible claims are dealt with more efficiently and the sudden surge in requests for interim measures in the past two years has returned to more normal levels after reforms in dealing with them had been made. On the criticism of the past year the Court's President remarked, in very diplomatic terms, the following:

I do not expect Governments to agree with all the Court’s judgments and decisions and they are naturally free to express that disagreement. Where they feel the need to do so, I would urge them to use terms which do not undermine the independence and authority of the Court and which seek to rely on reasoned argument rather than emotion and exaggeration. Democracy cannot function effectively without the rule of law; there can be no rule of law without respect for an independent judiciary, and that is true at European as well as domestic level.

Hammarberg, to be succeeded this year by Nils Muižnieks of Latvia on 1 april, stressed that the Court has made many key contributions on a range of issues which he also encountered in his own work: the rights of Roma, homosexuals, migrants and persons with disabilities amongst others. A few other notable remarks he made concerned the current reform efforts. Hammarberg emphasized:

However, everything that I have learned has made me believe that there are some features of the system which definitely must be protected through the reform process. One is the possibility of individual petition. Another is the principle of collective guarantee. A third one is the notion of the Convention as a “living instrument”, allowing the Court to make dynamic interpretations of the rights set forth in the Convention.
On the latter point, the Convention as a living instrument, he noted:

I do consider that the Court on the whole has handled this challenge in a proper manner. Criticisms about “judicial activism” or arbitrariness have really not been fair. The approach has been serious. The judges have not introduced just personal ideas; they explore whether there is a consensus on such cases in the superior courts in the member states; they analyse decisions of other international jurisdictions; and they take into account, when relevant, treaty developments in the UN.
Referring to the large case-load, Hammarberg stated:

It must be stressed that the problem is not that people complain, but that many of them have reasons to do so.
At the same occasion a seminar was also held on “How to ensure greater involvement of national courts in the Convention system?”. A webcast of that seminar can be watched here. There you can also find the speeches delivered.

Wednesday, 1 February 2012

New Publications on the ECHR

Again, a number of new academic publications relating to the European Convention on Human Rights and the Court in Strasbourg. For a fuller overview of recent articles on human rights, from which this is just an ECHR-related excerpt, please consult the very useful monthly Online Contents, compiled by my documentation colleagues here at the Netherlands Institute of Human Rights (SIM).

* F. Korenica and D. Doli, ‘Taking care of Strasbourg: the status of the European Convention on Human Rights and the case-law of the European Court of Human Rights in Kosovo’s domestic legal system’, Liverpool Law Review, vol. 32, no. 3 (2011) pp. 209-223

* G. van der Schyff and A. Overbeeke, ‘Exercising religious freedom in the public space: a comparative and European Convention analysis of general burqa bans’, European Constitutional Law Review, vol. 7, no. 3 (2011) pp. 424-452.

* C. Ryngaert, ‘The European Court of Human Rights' approach to the responsibility of member states in connection with acts of international organisations’, International and Comparative Law Quarterly, vol. 6, no. 4 (2011) pp. 997-1016.

* S. Besson, ‘Evolutions in non-discrimination law within the ECHR and the ESC systems: it takes two to tango in the Council of Europe’, American Journal of Comparative Law, vol. 60, no. 1 (2012) pp. 147-180.

And finally two case notes in the International Legal Materials:

* European Court of Human Rights: M.S.S. v. Belgium & Greece, introductory note by Patricia Mallia, vol. 50, no. 3 (2011) pp. 364-439.
* European Court of Human Rights: Lautsi & others v. Italy, introductory note by Christiane Bourloyannis-Vrailas, vol. 50, no. 5 (2011) pp. 894-927.