Thursday, 28 March 2013

UK Prisoner Voting Rights Update

The continuing saga of voting rights for prisoners in the United Kingdom now includes a new episode. This week the Court decided (in an unpublished decision) to adjourn the consideration of over 2,500 prisoner voting rights cases until at the latest September 2013. The reasoning behind this is to give the Committee of Ministers time to supervise the implementation of the Court's judgments on the mater, now that the UK Government has introduced a draft bill with several options in November last year. This is the full text of the press release:

The European Court of Human Rights has decided to adjourn its consideration of 2,354 applications against the United Kingdom concerning prisoners’ right to vote pending before it.

In its first judgment against the United Kingdom regarding prisoners’ right to vote, Hirst v. the United Kingdom (no. 2) (74025/01) of 6 October 2005, the Grand Chamber of the Court found that a blanket ban preventing all convicted prisoners from voting, irrespective of the nature or gravity of their offences, constituted a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights. It did not give any detailed guidance as to the steps which the United Kingdom should take to make its law compatible with Article 3 of Protocol No. 1, emphasising that there were numerous ways of organising and running electoral systems and that it was for each Member State of the Council of Europe to decide on its own rules. In its Chamber judgment in Greens and M.T. v. the United Kingdom (60041/08 and 60054/08) of 23 November 2010, the Court again found a violation of the right to free elections, as the
Government of the United Kingdom had failed to amend the blanket ban legislation. The Court held that the Government should bring forward legislative proposals to amend the law and to enact the legislation within a time-frame decided by the Committee of Ministers, the executive arm of the Council of Europe, which supervises the implementation of the Court’s judgments. The Government were granted an extension of time pending proceedings before the Court’s Grand Chamber in an Italian case concerning prisoners’ right to vote (Scoppola v. Italy (No. 3) (126/05), Grand Chamber judgment of 22 May 2012).

The Committee of Ministers has been following the UK Government’s progress in complying with the Court’s rulings. On 22 November 2012, the Government published a draft bill on prisoners’ voting eligibility. The draft bill includes three proposals: (1) ban from voting those sentenced to four years’ imprisonment or more; (2) ban from voting those sentenced to more than six months; or (3) ban from voting all prisoners (i.e. maintain the status quo). The Committee of Ministers is overseeing the progress of this draft bill. It has decided to resume consideration of the cases Hirst (no. 2) and Greens and M.T. at the latest at its September 2013 meeting.

In view of the Committee of Ministers’ decision, the Court decided to adjourn its consideration of the pending applications against the United Kingdom concerning prisoners’ right to vote until, at the latest, 30 September 2013. In the meantime, it has invited the Committee of Ministers to keep it regularly informed of progress.

Tuesday, 26 March 2013

New Issue IAEHR

The newest edition of the annual journal Inter-American and European Human Rights Journal (vol. 5, nos. 1-2, 2013) is out now. It includes at least two articles on the European Convention:
* Erick Acuña Pereda, 'The Institutionalization of People with Mental Disabilities: Comparative Analysis between its Treatment under the Inter-American and European System of Human Rights'

* Laurence Burgorgue-Larsen, 'Interpreting the European Convention: What can the African Human Rights System Learn from the Case law of the European Court of Human Rights on the Interpretation of the European Convention?'

Monday, 25 March 2013

Another Hurdle Taken for Protocol 15

Last week, the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe (PACE) agreed that Draft Protocol 15, which aims to reform several aspects of the Convention system, could be adopted without amendment. It did so on the basis of a report by rapporteur Christoper Chope from the United Kingdom. This means that another hurdle on the way to adoption of the new Protocol has been taken. The plenary of PACE is now likely to adopt the Draft Protocol during its April session. As the entry into force of the previosu Reform Protocol took so many years, the Committee urges all state parties to ratify as soon as possible once the Protocol is adopted for signature and ratification, emphasizing that "the proposed changes to the text are principally of a technical and uncontroversial nature". After all the very controversial discussions in the past few years out of which this compromise on this Protocol arose, it may be slightly surprising to phrase it that way.

The rapporteur notes, in passing, that it is his understanding that the Brighton conference last year, after the earlier Interlaken and Izmir ones, was the last annual one. More rest on that front thus - it is now time for elaboration and implementation rather than new political plan-making. Tellingly, he notes on the discussions of the past few years "Stressing the need to reform - and criticising - the European Court of Human Rights (the Court) tends to mislead the public by suggesting that reform of the Court alone is needed."

The Report includes as an annex the Opinion of the European Court of Human Rights on Protocol 15 of 6 February 2013 which I had not seen earlier in the public domain. It is also available on the Court's site here. The opinion notes that three of the five changes included in the Protocol were suggested in the run-up to the Brighton Conference by the Court itself. The tone of the Opinion is generally positive, with a more critical stance on the specific wording of the inclusion of the margin of appreciation in the Convention's preamble.

More news on the reform process can be found here.

Friday, 22 March 2013

Oleynikov Judgment on State Immunity

It is my pleasure to introduce a guest post by Dr Rosanne van Alebeek, a fellow human rights expert. She is an assistant professor and senior researcher at the University of Amsterdam and has particular expertise on the subject of immunities and human rights. I am therefore very grateful that she has been willing to write a comment on the recent case of Oleynikov v. Russia, a case which also features North Korea:

In its recently issued judgment in Oleynikov v. Russia (14 March 2013) the European Court of Human Rights confirms the by now well-established principle that the grant of immunity to foreign states or foreign state officials in excess of the requirements of public international law violates the right of access to court enshrined in Article 6(1) ECHR. The judgment does not break new ground, but in view of the by now considerable body of Strasbourg case law in this field, it provides occasion for broader reflection on some of its possibly problematic elements.

The context

The relevant line of jurisprudence dates back to 2001, when the Court ruled for the first time that the grant of immunity by a national court in accordance with generally recognised rules of public international law constitutes an ‘inherent’ limitation on the right of access to court under Article 6(1) ECHR that does not, ‘in principle’, disproportionately restrict that right (Al-Adsani v. UK, para 56; McElhinney v. Ireland; Fogarty v. UK, 21 November 2001). The Court justified its position under reference to Article 31.3(c) VCLT, arguing that the Convention ‘cannot be interpreted in a vacuum’ and ‘should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity’ (Al-Adsani, para 55). In the years to follow the Court dismissed all immunity-related complaints on the ground that the disputed grant of immunity in fact conformed to a rule of public international law and was hence a proportionate restriction in compliance with Article 6 (Kalogeropoulou v. Greece and Germany, 12 December 2002; Manoilescu and Dobrescu v. Roumania and Russia, 3 March 2005; Treska v. Albania and Italy, 29 June 2006; Sedelmayer v. Germany, 10 November 2009). It was not until 2010 that the Court redeemed the implicit promise that grants of immunity in excess of the requirements of international law would be held to violate Article 6. In Cudak v. Lithuania the Court found that the Lithuanian courts had failed ‘to preserve a reasonable relationship of proportionality’ and ‘impaired the very essence of the applicant's right of access to a court’ by the grant of immunity to Poland in a labour dispute where international did allow the exercise of jurisdiction (para. 74. See later also Guadagnino v. Italy and France, 18 January 2011; Sabeh El Leil v. France, 29 June 2011. In Wallishauser v. Austria, 17 July 2012, the same reasoning was applied to the rules on the service of process instituting a proceeding against a State).

The case

In view of the fact that Russian courts occasionally still apply the absolute rule of state immunity, it was a matter of time before the Court would find against Russia under the reasoning developed in Cudak. Even though the 2002 Code of Commercial Procedure provides that before the commercial courts the restrictive state immunity rule applies, the absolute state immunity rule is still codified in the 2002 Code of Civil Procedure (paras. 15-20). And while the Constitutional Court has condemned a ‘formalistic application’ of that legislation (paras. 21-24), adherence to the absolute approach not uncommon. The case at hand concerned a dispute over a failure by North Korea to repay a debt to the applicant, Mr. Oleynikov. On appeal, the Khabarovsk Regional Court ruled that ‘lodging a claim in a court of the Russian Federation against a foreign State … [is] allowed only upon the consent of the competent agencies of the State in question, unless otherwise provided by an international treaty of the Russian Federation or by a federal law’ and in the absence of the consent of North Korea it dismissed the applicant’s claim (para. 14).

The European Court started by reiterating the principles developed in previous cases. In particular, it considers that ‘the International Law Commission’s 1991 Draft Articles [on Jurisdictional Immunities of States and Their Property], as now enshrined in the 2004 Convention [on Jurisdictional Immunities of States and Their Property], apply under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either’, and notes that Russia has not opposed the adoption of the Convention and has in fact signed it in 2006 (para. 66). What is more, the Court noted, Russia appears to have accepted restrictive immunity as a principle of customary international law, even prior to that (para. 67) and the provisions of the International Law Commission’s 1991 Draft Articles and the 2004 Convention are consequently held to ‘apply to the respondent State, under customary international law’(para 68).

The Court had little difficulty to find in favour of the applicant now that the Russian courts had dismissed the applicant’s claim without any examination, applying the absolute state immunity rule: ‘The domestic courts did not undertake any analysis of the nature of the transaction underlying the claim’ and ‘thus made no effort to establish whether the claim related to acts of [North Korea] performed in the exercise of its sovereign authority or as a party to a transaction of a private law nature’ (para 70) and therefore ‘the Russian courts failed to preserve a reasonable relationship of proportionality’ and ‘thus impaired the very essence of the applicant’s right of access to court’ (para 72.). The Court was unanimous in its finding of a violation of Article 6(1).

A commentary

While the words ‘in principle’ (‘measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court’) do leave room for striking a different balance in exceptional circumstances, it seems fair to say that the principle launched by the Court in 2001 entails an automatic prevalence of public international law immunity rules over the right of access to court under the Convention. This commentary does not seek to further analyse this particular element of the jurisprudence introduced above. Criticism may certainly be raised in this respect – but the point has already been taken up in abundant academic commentary and needs no repeating here. Instead, I would like to briefly reflect on a different aspect of the Court’s case law on the relation between immunity rules and Article 6 ECHR, namely the Court’s approach to the identification of customary immunity rules.

Admittedly, the Oleynikov case is not the most insightful example of the possible problematic nature of the Court’s approach to this matter. Now that the Russian courts had taken an absolute approach to state immunity, the Court merely had to prove that in fact the restrictive approach reigns in customary international law, and that Russia had not persistently objected to the formation of that rule – which is in fact rather uncontroversial. It is therefore good to briefly look at the Court’s reasoning in the cases Cudak, Sabeh el Leil, and Guadagnino, where the Court was faced with the much more complex task of identifying the rule of customary state immunity in respect of labour disputes. In Cudak the Court found that the rule codified in Article 11 of the (still to enter into force) 2004 UN Convention on State Immunity applied to Lithuania under customary international law, in any case now that it had not expressly objected to the wording of Article 11. It reasoned as follows: ‘The report appended to the 1991 Draft Articles stated that the rules formulated in Article 11 appeared to be consistent with the emerging trend in the legislative and treaty practice of a growing number of States … This must also hold true for the 2004 Convention. Furthermore, it is a well-established principle of international law that, even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law, either “codifying” it or forming a new customary rule…. Moreover, there were no particular objections by States to the wording of Article 11 of the International Law Commission's Draft Articles, at least not by the respondent State. As to the 2004 Convention, Lithuania has admittedly not ratified it but did not vote against its adoption either. Consequently, it is possible to affirm that Article 11 of the International Law Commission's 1991 Draft Articles, on which the 2004 Convention was based, applies to the respondent State under customary international law. The Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 § 1, was respected.’ (Cudak, paras. 66, 67). In Sabeh el Leil, the Grand Chamber even moved to declare the entire 2004 Convention to reflect customary international law. Now that France had not opposed the Convention, but had in fact signed it and was in the process of ratifying it, ‘it is possible to affirm that the provisions of the 2004 Convention apply to the respondent State, under customary international law’(Sabeh el Leil, para. 58).

Apart from the problematic wording in Cudak (States are not bound by the provisions of a codification treaty, but by the underlying customary international law rule, as is better reflected in the reasoning in paras. 66 and 68 of the Oleynikov Judgment), the casualness with which the Court identifies custom is striking. Custom is generally considered to follow from a consistent State practice accompanied by a sense of legal obligation, opinio juris. Where the ICJ in Germany v. Italy (3 February 2012) engaged in a comprehensive analysis of all available (national court) practice, the ECtHR relies completely on the ILC Commentary. More problematic even is the fact that this Commentary provides very little proof of the traditional constitutive elements of customary international law: an ‘emerging trend in the practice of a growing number of states’ is a far cry from ‘consistent state practice’. In fact, Article 11 of the 2004 Convention was one of the most controversial articles on the Convention, since state practice in respect of state immunity in labour disputes is not consistent. In this respect, the critical attitude of the Advocate-General of the ECJ in his Opinion in respect of the preliminary ruling in the German case Mahamdia v. Algeria (Opinion delivered 24 May 2012) is noteworthy. The AG noted that in the field of labour disputes ‘national approaches [to state immunity] are very varied and national courts sometimes give preference to the nature of the functions performed, sometimes the purpose of those functions and sometimes the nature of the contract. In some cases these criteria have to be satisfied cumulatively for immunity to be waived. Furthermore, the issue of immunity may be seen differently depending on whether the dispute concerns recruitment, dismissal or the actual performance of functions. These national differences are so pronounced that any codification at international level is very difficult and may even cast doubt on the actual existence of a rule of customary international law in this regard which is any more than an undeniable tendency.’ (paras. 23-24) The AG expressly criticises the position of the ECtHR that article 11 of the Convention reflects custom, arguing that ‘[t]he national differences … suggest a more nuanced view.’(para. 26). According to the ECJ a State does not enjoy immunity in labour disputes ‘where it concludes contracts of employment with persons who do not perform functions which fall within the exercise of public powers’ (19 July 2012, para. 49) – a formulation of the rule that is different from that found in Article 11.

As said, the Oleynikov case did not similarly require the Court to take a position on a highly controversial question of immunity law since the restrictive nature of the customary rule of state immunity is undisputed. However, the reference of the Court to the failure of the Russian courts to take the ‘nature’ of the underlying transaction into account, is interesting in view of the fact that Article 2.2 of the Convention provides that ‘[i]n determining whether a contract or transaction is a “commercial transaction” … reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.’ The provision is a hard-fought compromise, that tries to accommodate the position of amongst others Russia, that it should be possible to have regard to the purpose of a transaction when determining whether it qualifies as a commercial transaction. If the entire Convention reflects custom, more nuanced language is arguably required to describe the obligations of the Russian courts.

Another noteworthy recurring element in the Court’s reasoning in the cases at hand is the emphasis on the attitude of the respondent State towards the 2004 UN Convention. It remains unclear how exactly this attitude affects the reasoning of the Court. It seems the Court hints at excluding the possible applicability of the persistent objector doctrine, but the reliance on the attitude towards the Convention seems inappropriate in this respect. First of all, states can only evade obligations under a new rule of customary international if they consistently oppose it throughout the formative period, while the Court itself locates the customary international law status of the various rules in the Convention before 1991. Moreover, opposition to the Convention may have a number of reasons and does not qualify as a blanket objection to the various rules found in it in the absence of explicit language to that effect.

In sum, these cases give rise to a variety of highly complex questions of general public international law. By rendering the scope of international immunity law the decisive criterion for the assessment of a State’s compliance with the right of access to court, the ECtHR has become a de facto court of appeal on highly controversial immunity issues. The Oleynikov case, and especially Cudak, Sabeh el Leil and Guadagnino warrant critical reflection on the question whether it is up to that task.

Thursday, 21 March 2013

Pirate Bay Decision on Copyright and Freedom of Expression

Last week, The European Court issued its decision in the case submitted by two of the founders of Pirate Bay, Neij and Sunde Kolmisoppi v. Sweden. The two had been convicted for copyright infringements. The Court has recently held that copyright enforcement infringes upon freedom of expression (see Dirk Voorhoof's and Inger Høedt-Rasmussen's guest post here). This decision confirms this and again shows that copyrights do not necessarily have to yield to freedom of expression when balancing the two. In fact, a very wide margin of appreciation is left to states, which - as several commentators have noted  - means that for lack of clear balancing criteria, a certain level of uncertainty will for the moment remain. New cases will have to be awaited to provide further clarity, if they do indeed rise above a very fact- and context-specific asssessment. This decision has already elicited a number of comments, of which I want to refer the reader to two here. First, Jane Lambert reports and analyses the case on NIPC Law Blog. Secondly, the two authors of the earlier guest post on ECHR Blog have written a comment on the decision at KluwerCopyrightBlog. Both well worth reading.

Wednesday, 20 March 2013

Debate on Lautsi in ICON

The newest issue of the International Journal of Constitutional Law (ICON, vol. 11, issue 1, 2013) includes a debate on the famous Lautsi judgments of the European Court on allowing a crucifix in classrooms (see my post on the Grand Chamber judgment here). Three different contributions engage in the debate on the Italian case:

* Dimitrios Kyritsis and Stavros Tsakyrakis, 'Neutrality in the classroom'

In Lautsi v. Italy the Grand Chamber of the European Court of Human Rights decided that the display of the crucifix on the classroom walls of Italian state schools is compatible with the European Convention of Human Rights. In this article we develop an account of neutrality, which militates against the decision of the Grand Chamber and vindicates the claimants. Its gist is that neutrality is not only infringed, when individuals are coerced by the state to pursue a certain religious faith or attitude, but also when the state endorses a religious faith or attitude in regulating areas of social life that pertain to one's status as free and equal member of the political community. Breaches of neutrality, thus understood, constitute a violation of the right to religious freedom. They are also not amenable to a proportionality assessment and impose a uniform standard for all members of the Council of Europe. The display of the crucifix in Italian state schools falls short of this standard.

* Lorenzo Zucca, 'Lautsi: A Commentary on a decision by the ECtHR Grand Chamber'

On March 18, 2011, the Grand Chamber recognized a wide freedom for Italy to decide whether or not to display the crucifix in the classroom.1 By doing that, it reversed the decision of the second chamber that had declared the crucifix to be incompatible with the principle of secularism and the respect owed to parental convictions as protected by article 2, protocol 1, ECHR.

The decision already provoked a huge wave of largely critical comments on the web, although it was hailed as a victory for the Italian government and for the Vatican. It calls for a calm reflection on several issues, and that is what I would like to attempt in this comment. In section 2, I will discuss the position of the courts concerning the symbols in the educational environment. In section 3, I discuss the notion of secularism lying behind the Grand Chamber’s decision. In section 4, I analyze the central idea of respect owed to parental convictions in matters of education and the margin of appreciation left to the state on how to show respect. Section 5 brings us back to the concrete legal problems that Italy faces regarding the presence of the crucifix. Section 6 concludes.

* JHH Weiler, 'Lautsi: A reply'

Kyritsis and Tsakyrakis make an important contribution to the discussion of the concept of neutrality in our contemporary political theory and political praxis. Erudite, learned, probing, and categorical in its conclusion: the Grand Chamber erred badly. The theoretical apparatus developed rewards careful study. But its application to the Lautsi decision is fundamentally flawed by the false premise on which its discussion is predicated. By adopting this false premise the authors do not deal with the real hard case to which the “crucifix in the classroom” gives rise. 

Monday, 18 March 2013

'Casse-toi, pauv' con' Satire Judgment

The former French President Nicolas Sarkozy has a reputation for being very direct and blunt. In a famous encounter at the annual 'Salon de l'Agriculture' in France a few years ago, when one of the visitors refused to shake his hands and said he did not want to be made filthy, Sarkozy retorted by saying "Eh ben casse-toi alors, pauv' con!" ("Well, then get lost, you stupid bastard"). The now infamous words and the incident were filmed and became viral on social media. Subsequently, they were used in numerous satirical books, cartoons and programmes and also in political ads by Sarkozy's opponents. The words even made their way to the anti-Mubarak demonstrations in Tahrir Square in Cairo and also have their own wikipedia entry. This week, another echo of the phrase made its way to Strasbourg in the case of Eon v. France (available only in French), in which the Court found a violation of the freedom of expression.

Mr Eon was a leftist activist and former elected departemental representative. In the summer of 2008, during a visit of then President Sarkozy to the town of Laval, Eon waved a small placard with the aforementioned quote. He was immediately taken away by local police to the police station and eventually prosecuted and convicted for insulting the head of state, under a provision aimed at defending the digmnity or honour of from a 1881 law on freedom of the press (sic!). The penalty in his case consisted of a suspended fine of 30 euros. One of the main reasons the domestic courts took into account was that he had not acted in good faith, among others since it was premeditated.

In Strasbourg, Eon complained about a violation of his freedom of expression. France tried to have the complaint rejected on account of the lack of a significant disadvantage for the applicant (admissibility criterion in Article 35, para. 3 (b) of the Convention). The Court dismissed this objection. It held that although the situation concerned a moderate fine of minimal financial weight, the subjective perception of the applicant (in his view a point of principle was at stake) combined with what was objectively at stake in the case (this was a highly mediatised case relating to a national legal provision about which there was a lot of national debate, including in parliament) were also relevant. In addition, from the perspective of respect for human rights (one of the safeguard clauses of the admissibility criterion) the Court found that the case related to a matter which was, from btoh a national and Convention perspective, not minor.

On the merits, unsurprisingly, the Court held that the conviction amounted to an interference under Article 10 ECHR, that this interference was prescribed by domestic law and that it had pursued the legitimate aim of the protection of the reputation of others (in this case, the president of France). as to the question of whether the interference had been "necessary in a democratic society", the Court considered that taken at face value the text of the placard was offensive. However, the expression had not targeted the private life or honour of the president nor was it a gratuitous personal attack. Rather, it could be seen as political criticism. This characterization brings with it a higher degree of protection, to which could be added in this case that the target, the president, was a politician himself - a category of public figures towards which a wider freedom of expression is allowed. Importantly, by using the exact phrase the president himself had uttered earlier on, a quote which had been widely mediatised and had yielded widespread humorous comments, Mr Eon was availing himself of a satirical mode of expression. As the Court had held in earlier cases (see my earlier post here), satire in essence aimed to provoke and agitate. This meant that any interference with satire had to be scrutinised with particular care. Sanctioning expressions such as those of the applicant could, moreover, have a chilling effect. Satirical contributions on public matters could play, in the Court's view, a very important role in free debate on questions of general interest without which democracy cannot exist. Weighing all these factors, the Court concluded that applying a criminal sanction was disproprotionate in the light of the legitimate aim the state sought to protect. Therefore, Article 10 had been violated.

The Court's decision was not unanimous. On the admissibility issue, one judge (Pejchal) dissented. Although the judge agreed that the conviction amounted to a violation of Article 10, he found that the fine did not amount to a significant disadvantage. On the merits, six judges out of seven found a violation. And on the aspect of just satisfation (the Court held that the judgment itself provided sufficient satisfaction of the applicant), two out of seven judges dissented: judges Power-Forde and Yudkivska were of the opinion that the applicant had a right to more than just a moral victory.

From a legal perspective, this case does not offer much news. The reasoning is solidly built on earlier cases in virtually all its aspects. One could not, indeed, have expected any other outcome on the merits. For France it may re-ignite the discussion about the desirability of the legal provision in question. Meanwhile, the former president may want to look up what the old maxim of the golden rule entails. The word boomerang comes to mind ...

Thursday, 14 March 2013

New and Updated Case-Law Factsheets

The case-law factsheets of the Court have been updated and extended. In addition, translations in French, Russian, German, Polish, and Turkish are available on the Court's website. Please find a list below of those factsheets which have been updated in the past half year (arranged per theme, so some pop up under two different headings):


- protection of minors (March 2013)
- children's rights (February 2013)
- parental rights (March 2013)
- reproductive rights (January 2013)


- terrorism (December 2012)
- violence against women (October 2012)


- Protection of personal data (January 2013)
- New technologies (March 2013)


- Gender identity issues (October 2012)
- Homosexuality: criminal aspects (October 2012)
- Roma and travellers (January 2013)
- Sexual orientation issues (February 2013)


- Case-law concerning the EU (January 2013)
- "Dublin" cases (October 2012)


- Expulsions and extraditions (February 2013)
- Terrorism (December 2012)


- Detention and mental health (January 2013)
- Environment-related cases in the Court's case-law (December 2012)
- Health (January 2013)
- Mental health (February 2013)
- Prisoners' health rights (March 2013)
- Social welfare (January 2013)


- Death penalty abolition (December 2012)
- Right to life (February 2013)


- Freedom of religion (February 2013)
- Protection of journalistic sources (November 2012)
- Trade union rights (November 2012)


- Detention and mental health (January 2013)
- Detention conditions and treatment of prisoners (January 2013)
- Prisoners' health rights (March 2013)


- Forced labour and trafficking (November 2012)
- Taxation and the ECHR (January 2013)
- Trade union rights (November 2012)
- Work-related rights (February 2013)


- extra-territorial jurisdiction of ECHR Member States (October 2012) (Note: This should be "state parties" rather than member states of course, but this is how the Court calls it on its own website, strangely!)
- Interim measures (January 2013)
- Pilot judgments (January 2013)
- Use of international conventions by the ECtHR (November 2012)

Wednesday, 13 March 2013

Article on the Haas Judgment on Facilitating Suicide

Daniel Rietiker, working at the registry of the European Court of Human Rights, has published an article on the Haas case in the Harvard Human Rights Journal (vol. 25, 2012) entitled 'From Prevention to Facilitation? Suicide in the Jurisprudence of the ECtHR in the Light of the Recent Haas v. Switzerland Judgment.' This is the abstract:

To talk about suicide is not an easy task, even in a modern and open society. It is even more difficult for a judge to deal with this issue. More difficult still is the task of deciding such a case on an international level, far from the realities of the facts and the suffering of the people concerned. The moral and ethical considerations may vary considerably from one country to another. The judge may face a broad range of situations, from cases where she must decide whether the authorities did enough to prevent a fragile person from committing suicide, to cases where she must decide whether the authorities were entitled, or even obliged, to facilitate the suicide of a person willing to die. The aim of this Article is to explain the dilemma the European Court of Human Rights (“the Court”) has faced when it has been confronted with situations involving a risk or act of suicide, and to show how the Court has dealt with these cases.

Monday, 11 March 2013

New Article on EU Accession to ECHR

Christina Eckes (University of Amsterdam) has published 'EU Accession to the ECHR: Between Autonomy and Adaptation' in the Modern Law Review, Vol. 76, Issue 2 (2013) pp. 254-285. This is the abstract:

After the European Union's accession to the European Convention on Human Rights the EU will become subject to legally binding judicial decisions of the European Court of Human Rights (ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly; Committee of Ministers) when they act under the Convention. Convention rights and their interpretation by the ECtHR will be directly enforceable against the EU institutions and against Member States when acting within the scope of EU law. This will vest the ECHR with additional force in a number of Member States, including Germany and the UK. All Member States will further be subject to additional constraints when acting under the Convention system. The article considers the reasons for, and consequences of the EU's primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of the EU's accession for its Member States.

Friday, 8 March 2013

New Articles on ECHR

A new batch of academic writing related to the Convention and the Court:

* A. Berkaw, 'Presumed guilty: how the European Court handles criminal libel cases in violation of Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms', Columbia Journal of Transnational Law, vol. 50, no. 3 (2011/12) pp. 774-804.

* A. Sarvarian, 'Common ethical standards for counsel before the European Court of Justice and European Court of Human Rights', European Journal of International Law, vol. 23, no. 4 (2012) pp. 991-1014.

Then, two issues of the German Law Journal. The issue vol. 13, no. 6 (2012) included:  

* B. Peters, 'Germany's dialogue with Strasbourg: extrapolating the Bundesverfassungsgericht's relationship with the European Court of Human Rights in the preventive detention decision', pp. 757-772.

* S. Kirchner, 'The personal scope of the right to life under Article 2(1) of the European Convention on Human Rights after the judgment in A, B and C v. Ireland', pp. 783-792.

And the subsequent issue, no. 7, featured:

* P. De Hert and F. Korenica, 'The doctrine of equivalent protection: its life and legitimacy before and after the European Union's accession to the European Convention on Human Rights', pp. 874-895.

Finally, the Michigan Journal of International Law (Vol. 33, no. 4, Summer 2012) included:

* Barbara Miltner, 'Revisiting Extraterritoriality After Al-Skeini: The ECHR and Its Lessons.'

Tuesday, 5 March 2013

Court on Twitter

Informing the general public as well as practitioners and experts of its work has been at the forefront of the Court's attention in the past few years. This week, the European Court of Human Rights has added another dimension to this by joining the social messaging system Twitter. Strasbourg's human rights tweets - and how appropriate when Spring is about to start - can now be followed at: @ECHR_Press

Friday, 1 March 2013

New Articles in EHRLR

The news issue of the European Human Rights Law Review (2013, 1) includes a wide range of articles and case notes about the ECHR and the European Court. Please find an overview below:

* Fiona de Londras, 'Dual functionality and the persistent frailty of the European Court of Human Rights.'

* Frances Hamilton, 'Why the margin of appreciation is not the answer to the gay marriage debate.'
* Charles Barrow, 'Trade union rights in the United Kingdom and article 11 of the European Convention: past failures and future possibilities.'

 And the case notes: 

* (Case Comment) Terrorism: precedence of United Nations resolutions - restriction of cross-border movement - Nada v Switzerland (Application No.10593/08).  

* (Case Comment) Prisoners: indeterminate prison sentences - possibility of release - provision of rehabilitative courses - James, Wells and Lee v the United Kingdom (Application Nos 25119/09, 57715/09 and 57877/09).  

* (Case Comment) Torture: terrorism offences - surveillance by security services - El Haski v Belgium (Application No.649/08).  

* (Case Comment) Adoption: abandoned Algerian child - kafala - refusal of French courts to grant adoption - Harroudj v France (Application No.43631/09).  

* (Case Comment) Detention: detention of homosexual - solitary confinement for prisoner's protection - X v Turkey (Application No.24626/09).  

* (Case Comment) Mental capacity: adoption - care proceedings - best interests - R.P. and Others v the United Kingdom (Application No.38245/08).  

(Case Comment) Elected representatives: Turks and Caicos Islands - allegations of corruption - dissolution of House of Assembly - Misick v United Kingdom (Application No.10781/10).  

(Case Comment) Education: school closures - language - Catan and Others v Moldova and Russia (Application No.43370/04).