The Court has now made an updated version of its case-law guide on Article 1 ECHR available on its website. The Convention provision, as is well-known, provides that states "shall secure to everyone within their jurisdiction" the rights in the Convention. The case-law guide on this obligation to respect human rights specifically goes into the very contested concepts of jurisdiction and imputability, both notions that have spawned virtual bookshelves of academic literature. All case-law guides are available on the Court's website and now also include a number of translations into Chinese, including on the right to free elections, fair trial, the prohibition of forced labour and the right to liberty.
Tuesday, 20 August 2019
Wednesday, 14 August 2019
Please find below a number of new ECHR-related readings for Summer reading:
* Stephen Skinner, Lethal Force, the Right to Life and the ECHR. Narratives of Death and Democracy (Bloomsbury Professional; book):
'In its case law on the use of lethal and potentially lethal force, the European Court of Human Rights declares a fundamental connection between the right to life in Article 2 of the European Convention on Human Rights and democratic society. This book discusses how that connection can be understood by using narrative theory to explore Article 2 law's specificities and its deeper historical, social and political significance. Focusing on the domestic policing and law enforcement context, the book draws on an extensive analysis of case law from 1995 to 2017. It shows how the connection with democratic society in Article 2's substantive and procedural dimensions underlines the right to life's problematic duality, as an expression of a basic value demanding a high level of protection and a contextually limited provision allowing states leeway in the use of force. Emphasising the need to identify clear standards in the interpretation and application of the right to life, the book argues that Article 2 law's narrative dimensions bring to light its core purposes and values. These are to extract meaning from pain and death, ground democratic society's foundational distinction between acceptable force and unacceptable violence, and indicate democratic society's essential attributes as a restrained, responsible and reflective system.'
* Ramute Remezaite, 'Challenging the Unconditional: Partial Compliance with ECtHR Judgments in the South Caucasus States', Israel Law Review, Volume 52, Issue 2 (2019) pp. 169-195:
'The European human rights system has long been seen as one of the greatest European achievements, with its European Court of Human Rights (ECtHR) as the world's leading human rights court. Current turbulent times, however, pose serious challenges to the European system, which is increasingly being contested by the deepening ‘implementation crisis’. The absolute obligation of member states of the Council of Europe (CoE) to abide by ECtHR judgments under Article 46 of the European Convention on Human Rights has been increasingly compromised by the selective approach of states, often resulting in minimal, dilatory, lengthy or even contested compliance with ECtHR judgments. As the implementation backlog has grown largely after the accession to the CoE of the newly emerged states, as aspiring democracies, in the late 1990s and early 2000s following the collapse of the Soviet Union, this article analyses the compliance behaviour of these states by looking at the South Caucasus states: Armenia, Azerbaijan and Georgia. The research findings suggest that partial compliance is a very likely form of compliance in the South Caucasus states as democratising states, and that some of the factors that explain such behaviour discussed in the article may be distinctive of states that joined the CoE as emerging democracies after the collapse of the Soviet Union. These states continue to display various vulnerabilities in the areas of human rights, the rule of law and democracy. This, in turn, has serious implications for the whole European human rights system and its ability to ensure that states’ commitments to the CoE are duly respected in the longer term.'
* Manon Julicher, Marina Henriques, Aina Amat Blai, and Pasquale Policastro, ‘Protection of the EU Charter for Private Legal Entities and Public Authorities? The Personal Scope of Fundamental Rights within Europe Compared’, Utrecht Law Review, volume 15, no. 1, pp. 1-25 (2019).
'The personal scope of the Charter of Fundamental Rights of the European Union (the Charter) is an area that still needs to be defined by the Court of Justice of the European Union (CJEU). The issue surrounding the personal scope entails the question of who can claim the protection of fundamental rights. A particularly controversial matter has proved to be the question whether, and if so under what circumstances, private legal entities and public authorities can invoke fundamental rights. This article aims to provide a detailed examination of the ‘landscape’ the CJEU must take into account when dealing with the personal scope of the Charter in the future. Firstly, this landscape is made up of the background and objectives of the EU and the European Convention on Human Rights (ECHR) legal systems. Secondly, it is shaped by the personal scope application of the Charter as interpreted by the CJEU so far, and the personal scope application of the ECHR as interpreted by the European Court of Human Rights (ECtHR). Finally, the application by Member State courts of fundamental rights, via the Charter, ECHR and constitutional rights, forms an element in this landscape. An examination of these aspects will provide answers to the question of how the three main players on the European fundamental rights stage – the CJEU, the ECtHR and the national courts – have applied the personal scope of their fundamental rights up to now. This also encompasses answers to the question of how these applications relate to the different background and objectives of the ECHR and the EU legal systems. These answers will provide the CJEU with tools to deliver well-informed rulings on the personal scope of Charter provisions in the future.'
* Antal Berkes, ‘Concurrent Applications Before the European Court of Human Rights: Coordinated Settlement of Massive Litigation From Separatist Areas’, American University International Law Review, vol. 34, issue 1 (2019) pp. 1-88:
'“Concurrent applications” are defined as applications filed with the European Court of Human Rights (ECtHR) by several individuals and/or a State or States concerning the same factual context, and directed against one or several States, while a substantially analogous matter has already been submitted to one or more other procedures of international investigation or settlement. The present paper submits that the settlement of concurrent applications from separatist areas is feasible through the strategic use of existing procedural tools of the ECtHR without introducing a separate mechanism or further constitutionalizing the Convention to the detriment of individual justice. The Court should settle such concurrent applications in a coordinated way, taking into account the interconnected legal and factual background as well as procedural and substantive law questions of concurrent cases in individual procedures. Each case having its own factual specificities, the broader context and legal background make the concurrent applications interconnected.'
* Analie Frese and Hendrik Palmer Olsen, ‘Citing Case Law: A Comparative Study of Legal Textbooks on European Human Rights Law’, European Journal of Legal Studies, volume 11, issue 1 (2019, Open Access):
'Recent years have seen increased interest in data-driven methods in legal research. Technologies provide new automated alternatives to traditional doctrinal approaches, which rely on manual information retrieval. In this article, we address one aspect of this development. On the basis of a citation network containing judgments on Article 14 of the European Convention of Human Rights, we identify which cases are most frequently cited and explicitly used in the legal argumentation of the European Court of Human Rights. We subsequently compare our findings with presentations of Article 14 in German, French and British textbooks. We aim to demonstrate that 1) network analysis can provide relevant input to legal analysis by relying on objective measures of case importance and 2) scholarship relying on traditional doctrinal methods is more dependent on the authors’ subjective outlook than necessary.'
* Ronan Ó Fathaigh, ‘The Chilling Effect of Turkey’s Article 301 Insult Law’, European Human Rights Law Review, issue 3 (2019) pp. 298-308:
'This article discusses how the approach of the European Court of Human Rights has evolved in seeking to protect freedom of expression from the chilling effect of Turkey’s controversial Article 301 insult law. The article reveals the early reluctance within the Court in finding that the law’s provisions were incompatible with freedom of expression, and yet, the analysis now demonstrates how the Court’s concern for the chilling effect has led the Court to two adopt notable approaches: first, the Court permitting applicants to argue that the law, in and of itself, violates the European Convention on Human Rights, even where an applicant has not been convicted, nor even prosecuted under the law; and second, the Court’s application of its rarely-used competence under Article 46 of the European Convention, finding that amending Article 301 would “constitute an appropriate form of execution” of the Court’s judgment.'
* Ronan Ó Fathaigh and Dirk Voorhoof, ‘Article 10 ECHR and Expressive Conduct’, Communications Law, vol. 24, issue 2 (2019) pp. 62-73:
'The European Court of Human Rights has recently delivered a series of judgments finding violations of the right to freedom of expression over convictions for engaging in expressive conduct. The purpose of this article is to discuss the European Court’s recent case law on expressive conduct under Article 10 of the European Convention on Human Rights, and in particular to assess in what circumstances, if any, domestic courts may impose prison sentences, even if suspended, on individuals engaging in peaceful, but provocative and offensive expression.'
* Hendrik Palmer Olsen and Magnus Esmark, ‘Needles in a Haystack: Using Network Analysis to Identify Cases That Are Cited for General Principles of Law by the European Court of Human Rights’, iCourts Working Paper Series, No. 164:
'In this chapter, we propose two different methods to identify what we call polymorph principles in the practice of the European Court of Human Rights, i.e. principles of law that are not directly related to the interpretation of one or few articles in the convention, but are applicable to a case independent of its substantial content. Examples of these principles could be interest rates when states pay reparations, the quality of evidence or the relation between the ECtHR and the contracting states.
Since these transverse precedents are not easily identifiable in the ECtHR’s own database and since they are only occasionally taken under direct treatment in textbooks, we propose two methods to extract them from the more than 17.000 judgments that comprise the practice of the ECtHR. We use the citations between judgments to identify patterns where a precedent is cited by many different types of cases, indicating that the precedent is relevant no matter what article constitute the core of the case.
We conclude that the two different methods, both building directly on earlier research in automatic identification of case content based on citations to other cases and convention articles, yield satisfying results and provides another angle of entrance to the practice of the ECtHR, especially when combined to remove the largest possible amount of false positives.'
Monday, 12 August 2019
A bit over two years ago, professor Marten Breuer of the University of Konstanz organised a great expert conference on the issue of states and their domestic courts resisting in various more or less principled ways the judgments of the European Court of Human Rights. He has now published an edited volume on the topic with Springer, entitled Principled Resistance to ECtHR Judgments - A New Paradigm?. As with the conference, the great asset of the book is that it includes both a set of detailed country case studies, including on Russia, Germany, the United Kingdom and Italy among others, as well as more cross-cutting chapters on the notion of 'principled resistance', its sociological and institutional consequences, the role of the Venice Commission and the issue of national (legal) identity. Well worth a read not just for those interested in the broader backlash-against-international-courts literature, but also for those wanting to look beyond ideological and political debates and more interested in what domestic courts actually do, in detail. This is the summary:
'The book analyses the position of the ECtHR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECtHR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECtHR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept - 'principled resistance' - to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind 'principled resistance' shows enough commonalities in order to qualify such incidents as expression of a 'new paradigm'.'
Many congrats, Marten!
Friday, 5 July 2019
While in law schools we tend to focus ourselves and our students on the judgments of the Court (and so do many practitioners), a crucial phase, that of implementation, of course only starts after a judgment has been delivered. In the ECHR system, the Committee of Ministers is tasked with the supervision of the execution of judgments. It is supported in that role by the Council of Europe's Department for the Execution of Judgments. Since 'ears and eyes' on the ground are often very useful to provide context and addition information, this post-judgment phase allows for a degree of involvement of civl society nad national human rights institutions (NHRIs). The Department has now launched a special web page which gives an overview of how to do this. Since this information was previously not easily available, this is a very useful resource, which has come about at the request of civil society itself. The page includes an Information Note on best practices of how and when to address the Committee of Ministers. It also includes a useful flowchart of the timeline as well as the possibility to subscribe to an RSS feed to remain updated on relevant cases. Thus, the website reflects an important improvement in terms of information and accessibility, although additions would still be useful, according to the European Implementation Network.
And a small note: this is the 1001st post on this ECHR blog since its inception!
And a small note: this is the 1001st post on this ECHR blog since its inception!
Monday, 1 July 2019
The President of the European Court of Human Rights, Linos-Alexandra Sicilianos, and Maria-Andriani Kostopoulou, a lawyer at the Greek Court of Cassation, have co-authored a new concise book (180 pages), entitled The individual application under the European Convention on Human Rights. It has just been published with the Council of Europe. This is the publisher's abstract:
'An indispensable practical guide for any potential applicant and any legal professional.
This book, which is a practical guide aimed at both professional lawyers and potential applicants, clearly and comprehensively describes and analyses the main stages in the processing of an application before the organs of the European Convention on Human Rights.
Detailed descriptions are provided of the Convention system, the Rules of the European Court of Human Rights and the procedures which the Court has developed to expedite and optimise case processing.
Crafted by two specialists on the Convention, Linos-Alexandre Sicilianos, the current President of the European Court of Human Rights, and Maria-Andriani Kostopoulou, a lawyer at the Greek Court of Cassation, the book does not merely explain how to prepare and lodge an application, in particular as regards the formal requirements and admissibility criteria; it also presents a detailed assessment of a case by the various formations of the Court, covering all stages right through to the conclusion of proceedings. Finally, having analysed the judicial stage, the book goes on to describe the procedure for supervision of the execution of judgments before the Committee of Ministers of the Council of Europe.'
Friday, 28 June 2019
A number of developments to note at the Court and the Council of Europe this time. This week, the Parliamentary Assembly elected two new judges to the European Court of Human Rights. In respect of Germany, Anja Seibert-Fohr, was elected. A well-known figure in the human rights field, she is currently professor of public law, international law and human rights law in Heidelberg and until last year was a member of the United Nations Human Rights Committee. In respect of Estonia, Peeter Roosma was elected. He is currently a justice of Estonia's Supreme Court. But he is also very familiar with the ECHR, as he worked in the European Court of Human Rights between 2004 and 2016 as a lawyer and non-judicial rapporteur. Since then, he has been one of the Estonian ad hoc judges in the Court. He has also been a member of the Venice Commission. Their terms of nine years will start in January 2020.
There will also be some internal reshuffling at the Court, as a new deputy registrar has been elected, Marialena Tsirli. With a long track record in the Court (and before that in the European Commission of Human Rights), she encapsulates a lot of experience in the Strasbourg system. Her term will start on 1 July when she will succeed Françoise Elens-Passos, who has been the deputy registrar since 2015. Secondly, Paul Lemmens, the judge in respect of Belgium, has been elected as section president. His two-year term will start on 20 September.
On the procedural front, on 3 June, the Plenary of the Court adopted the newest version of the Rules of Court, which regulate its internal functioning and procedures.
It was also a very turbulent week for the international organization of which the Court is the crown jewel - the Council of Europe. On 26 June, it announced the name of its new Secretary-General. The Parliamentary Assembly elected the current Minister of Foreign and European Affairs, Marija Pejčinović Burić. She obtained an absolute majority of 159 out of 264 votes cast in the first round against 105 for her competitor, the Belgian Minister of Foreign Affairs Didier Reynders. She will succeed current Secretary-General Thorbjørn Jagland on 24 September, starting her 5-year term. For Reynders it is not the first time he fails to get elected or appointed for a European top position. Conspicuously, the election happened after the Parliamentary Assembly had voted to restore the voting rights of the delegates of Russia, which had been suspended following the Russian annexation of the Crimea. With financial, political and, of course, human rights challenges, this promises to be a tough time to head the organisation. But at least, the Council of Europe sorted out its leadership - something the European Union is still negotiating about at this very moment.
Tuesday, 25 June 2019
Aikaterini Tsampi, of the University of Groningen, has published a book on the separation of powers in the case-law of the European Court of Human Rights. The book, written in French, is entitled Le principe de séparation des pouvoirs dans la jurisprudence de la Cour européenne des droits de l’homme and was published by Editions Pedone in the series Fondation Maragkopoulos pour les droits de l’homme (No. 21). This is the abstract in English:
'What of the idea that a constitutional principle concerning the institutional organization of the State, such as the separation of powers, could be found in the jurisprudence of an international court of human rights, namely the European Court of Human Rights ? Even if it were to be audacious to prove that the judges of the Strasbourg Court apply a precise theory of separation of powers, it, nonetheless remains relevant to answer the question whether the solutions adopted by the aforementioned judges outline a coherent vision of what should be, in their view, the relations between the branches of government. Yet, one should always bear in mind that the theory of the separation of powers, as conceived in the contemporary liberal State, implies the consecration of only a minimum nucleus of solutions. Within this context, the primary aspiration of the separation of powers lies in the protection of the judicial and legislative branches against the executive. The European Court of Human Rights shares this view. Even if the principle of the separation of powers is not a principle enunciated by the Court, at least not with the required precision, it is, nonetheless, a principle already present in the Strasbourg jurisprudence and its future cannot but be regarded as promising.'
Monday, 17 June 2019
* Meltem Ineli-Ciger, ‘Remedies Available against Asylum Decisions and Deportation Orders in Turkey: An Assessment in View of European Law and the European Convention on Human Rights’, Nordic Journal of International Law, Vol. 88, Issue 2 (2019) pp. 216-249:
'This article examines administrative and judicial remedies against asylum decisions and deportation orders in Turkey and safeguards provided within these remedies with a view to analysing to what extent they are in line with European law and the European Convention on Human Rights (echr). The article has two main parts. The first part provides an overview of the Turkish asylum system and remedies available against asylum decisions and deportation orders in Turkey. Whereas, the second part identifies main procedural safeguards to be observed in asylum and deportation appeals by reviewing EU asylum acquis, the echr and case law of the European Court of Justice and the European Court of Human Rights. Building on this, the article assesses whether the Turkish law and practice incorporate these procedural safeguards and provide asylum seekers and migrants a right to effective remedy.'
And then a whole series of articles related to the European Convention and the European Court published online in the past months in the International Journal of Human Rights:
* Vibeke Blaker Strand, 'Interpreting the ECHR in its normative environment: interaction between the ECHR, the UN convention on the elimination of all forms of discrimination against women and the UN convention on the rights of the child':
'The article draws attention to how integrative interpretation – a methodology where the European Court of Human Rights integrates its normative environment into the interpretation of the European Convention of Human Rights – may offer an important path to bridging many of the challenges caused by fragmentation in the field of human rights. More specifically, the article offers insight into a selection of ECHR cases that are characterised by the existence of normative overlap between the ECHR, the CEDAW and the CRC; and by the fact that interaction between these legal sources actually takes place in the interpretation carried out by the Court. Interaction is discussed through two topics: the issue of state obligations in relation to domestic violence, and the issue of state obligations in relation to expulsion of immigrants with children. The article demonstrates that systemic integration may result in a strengthening of the protection of human rights under ECHR through what is termed ‘interpretive widening and thickening’.'
* Øyvind Stiansen,'Delayed but not derailed: legislative compliance with European Court of Human Rights judgments':
'Legislative changes can be crucial for implementing human rights. This article investigates how the need for legislative changes influences compliance with European Court of Human Rights (ECtHR) judgments. I argue that the need for legislative changes might influence compliance politics in two ways. First, ECtHR interference with the will of elected parliaments is controversial in several European states. Such controversy might increase the risk of defiance of judgments requiring legislative changes. Second, the greater number of veto players needed to pass legislative is likely to delay compliance. Using original implementation data, I show that the need for legislative changes tends to delay compliance, but does not increase the risk of long-term defiance. The ECtHR's ability to eventually prompt legislative changes is not smaller than its ability to induce other reforms. I also find that delays associated with the need for legislative changes are greater in states with greater numbers of ideologically diverse veto players, in states with a proportional electoral system, and in states without domestic judicial review.'
* Frederick Cowell, 'Understanding the causes and consequences of British exceptionalism towards the European Court of Human Rights':
'The United Kingdom’s exit from the European Union has overshadowed the increasingly fraught relationship the country has with the European Court of Human Rights. In recent years this has been heavily influenced by British exceptionalism among key policy makers. British exceptionalism, this paper argues, is opposition to the European Court of Human Rights characterised by the belief that the UK’s domestic constitutional institutions are unique and superior to the European Convention on Human Rights, in part because of their historical provenance and longevity. This has led to non-compliance with Court judgments being considered or arguments for withdrawal from the Convention being justified on the basis that British traditions and institutions are superior. On the international plane this appears as a double standard on the part of the UK and contributes to the undermining of the Court’s authority. This paper looks at the core arguments of British exceptionalism, examining their historical origins within UK constitutional law and politics, before looking at how exceptionalism affects the Convention system across Europe.'
* Helen Keller & Reto Walther, 'Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3':
'While it is evident that the ECtHR’s main task is applying the ECHR, it is debatable whether the Court has adequate regard to general international law when considering questions left open by the ECHR. We contribute to this debate from a normative perspective. We discuss the criticism that the Court unduly evades the ARSIWA by applying an expansive positive obligations doctrine. We submit that the Court’s propensity to focus on preventive obligations is justified in substance, since it is difficult to imagine how human rights could be effectively protected without such positive obligations in a world where state, third state and private actors mingle. In this sense, the Court’s jurisprudence makes valuable contributions to the adaptation of the international legal system to changing societies. Criticism should focus less on the Court’s inclination toward positive obligations than on its pertinent methodology, which is at times less than convincing.'
* Martin Kuijer, 'The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession':
'The consequences of a prolonged non-accession of the European Union to the European Convention on Human Rights following Opinion 2/13 of the Court of Justice of the European Union may very well affect the longer-term effectiveness and viability of the Convention system. This contribution gives a succinct analysis of the institutional link between the Convention system and the EU legal order, and of the more recent interaction between the two systems, arguing that both were on what seemed to be a collision course until recently. The author stresses the continued need for an institutionalised arrangement between both regional courts working in the same geographic area interpreting similar human rights standards.'
* Tonje Meinich, 'EU accession to the European Convention on Human Rights – challenges in the negotiations':
'In this article, I go through the main challenges we encountered in the negotiations between the EU and the member states of the Council of Europe on the EU accession to the European Convention on Human Rights. I particularly comment on the discussions concerning the co-respondent mechanism and the inclusion of EU Common Foreign and Security Policy.'
* Geir Ulfstein, 'Interpretation of the ECHR in light of the Vienna Convention on the Law of Treaties'. [no abstract available]
Thursday, 13 June 2019
In its ever-increasing collection of case-law guides, the European Court of Human Rights has just now published for the first time a guide on Article 1 of the Convention's First Protocol, the protection of property. Considering that this is among the most invoked Convention articles, as well as being, due to its socio-economic nature, one of the toughest privisions to adjudicate on, it may not be surprising that it took a long time to compile (I know from experience what it is to compile an overview of ECHR case-law on that issue). However, it is still remarkable that the overview presents case-law up till August last year and was only put online now, in early June 2019. Be that as it may, this case-law guide like the earlier ones provides a very extensive and systematised overview of the Court´s acquis on the protection of property. It offers not just an explanation of the various notions in the provision, but also relates the jurisprudence on this to other Convention provisions and goes into specific issues, such as social welfare, banking, taxation, and property restitution. At the end of the extensive, 74-page overview, a list of all the referenced cases with hyperlinks is provided. Only available in English sofar.
Friday, 7 June 2019
The European Implementation Network, a hub of European civil society aimed at increasing the timely and effective implementation of the judgments of the European Court of Human Rights, has launched a call for contributions. The project is to create a handbook on the domestic advocacy for implementation of Strasbourg Court judgments. Here is what is envisaged:
'Context and purpose
The European Implementation Network (EIN) is holding an open call for information, input and views on the issue of domestic advocacy aimed at promoting the implementation of judgments of the European Court of Human Rights (ECtHR).
This process follows on from EIN’s first General Assembly, held in Strasbourg in December 2018, at which there was wide agreement that NGOs should not only reinforce their efforts to engage in the supervision of the execution of the Court’s judgments by sending written submissions to the Committee of Ministers (CM) in accordance with Rule 9 of the Rules of the CM, but that they should also do more to push domestically for the full and effective implementation of ECtHR judgments.
Against this backdrop, the EIN Secretariat decided to provide guidance on strategies and tools for effective domestic advocacy for ECtHR judgment implementation. The aim of this call for information, insights and views is to identify and examine what practice exists in this respect across Europe, with a view to assessing what strategies and tools have worked, and how domestic advocacy can be further strengthened.
The information received through this process will be compiled and analysed by the EIN Secretariat, and form the backbone of a Toolkit or Handbook for domestic advocacy for ECtHR judgment implementation, to be produced by the end of 2019.
This process is intended to be open and inclusive. Strategic use of ECtHR judgments to push domestically for reforms is an advocacy strategy that is still in its infancy, and a concerted effort is needed to shed light on existing good practice. The process is therefore open to NGOs, NHRIs and other civil society organisations, as well as interested individuals, who have worked on ECtHR judgment implementation. EIN members and partners are asked to not only provide answers themselves, but also to distribute this call more widely – by email, through their newsletters and on social media – to relevant organisations and people who might have interesting insights to share. Please send this email on to your respective members and partners, with a copy to email@example.com and firstname.lastname@example.org, and re-tween EIN’s tweet.
A few formalities
Contributions must be submitted in English and should be presented in Word format, in a single document with the attached form, and submitted by email to email@example.com, Cc: firstname.lastname@example.org. The submissions will not be made public, or shared with anyone outside the EIN Secretariat. The deadline for submitting contributions Thursday, 4 July 2019.'
Tuesday, 4 June 2019
Having trouble to find relevant or important new case-law amidst the large stream of cases decided in Strasbourg? The Case-Law Information and Publications Division of the Directorate of the Jurisconsult has published an online guide to help you out. It is entitled 'Finding and understanding the case-law of the European Court of Human Rights' and available in six languages so far: English, Russian, Bulgarian, Turkish, Spanish and Ukrainian. It includes information on the HUDOC search engine, on which selections of leading cases are published, case-law guides, researhcreports, fact files and much more.A good resource to start your quest to find the right case or the most relevant new jurisprudence of the Court. Let us hope this will become available in an increasing number of languages!
Friday, 31 May 2019
It is a season of firsts for the European Court of Human Rights. After its first Advisory Opinion under Protocol 16 last month, about which I reported earlier, this week the Grand Chamber has handed down its first judgment re infringement proceedings: Ilgar Mammadov v Azerbaijan. Mammadov is an Azerbaijani opposition politian and human rights activist who had been imprisoned from 2013 to 2018 and for many years the Council of Europe, other international organisations, and many NGOs had been calling for the release of this political prisoner. In this week's judgment, the Court unanimously found that the steps taken to implement the original judgment in the Ilgar Mammadov case of 2014 had only been limited and that as a result it could not be said that Azerbaijan had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment. As a result the country had failed to fulfil its obligations under article 46 of the ECHR to abide by the Court´s original judgment. This very damning appraisal of how Azerbaijan deals with its European Convention on Human Rights obligations is the first outcome of the so-called infringement proceedings.
The idea of infringement proceedings
The idea to create infringement proceedings within the ECHR system was first floated in the Parliamentary Assembly of the Council of Europe (PACE). Such proceedings were meant to make the implementation of the judgments of the Court more effective - even if by international comparison, then and now, the Strasbourg system's record is one of the more hopeful among international human rights institutions. Initially, the starting point was to give teeth to the proposal by including the idea of fines for states that persistently delayed the execution of judgments. Introducing infringement proceedings eventually became part of the wholesale reform of the Court in Protocol 14 to the ECHR of 2004, which entered into force in 2010. An amended version of Article 46, on the binding force and execution of judgments, from then onwards included a fourth paragraph, stating:
"If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1."
Paragraph 1 obliges State Parties to abide by the final judgments of the Court in cases to which they are parties. The amendment of Article 46 should be seen in the wider context of the large influx of cases reaching the European Court of Human Rights already in those days. The underlying idea was that the better and more efficient the Committee of Ministers could make sure states implement the Court´s judgments, the less new human rights complaints would come to Strasbourg. The option of bringing infringement proceedings for states refusing to comply with judgments was therefore added, in the shape of the new Article 46(4) to the Convention. One may note that this is not about (temporary) inability, but about unwillingness to secure ECHR standards. Thus infringement proceedings were meant to be used only in exceptional circumstances. The final formulation did not include a system of fines and may thus have lost some of its teeth (or crucial fangs, some might say), even if the moral and political message was still clear. As the State Parties phrased it in the Explanatory Report to Protocol 14:
"This infringement procedure does not aim to reopen the question of violation, already decided in the Court’s first judgment. Nor does it provide for payment of a financial penalty by a High Contracting Party found in violation of Article 46, paragraph 1. It is felt that the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned."
Today, one can conclude that indeed the starting point of exceptionality has been heeded by the Committee of Ministers, as these first ever infringement proceedings in the Mammadov case were only initiated at the end of 2017. The reason was the continuing refusal by Azerbaijan to unconditionally release opposition politician Ilgar Mammadov following the Court´s 2014 judgment.
Origins of the Mammadov case
Ilgar Mammadov was the co-founder and chair of the Republican Alternative Civic Movement (“REAL”), a political party on whose ticket he planned to run for the 2013 presidential electinos in Azerbaijan, He also blogged on topical political issues, including being very critical about parliament, for the adoption of a law that introduced heavy penalities for unauthorised demonstrations. In early 2013, he also reported on riots in the town of Ismayilli, afterr visiting the place. He blamed the unrest on "corruption and insolence" of public officials.Within a few weeks, he was charged with the offences of organising or actively participating in actions causing a breach of public order and detained on remand from 4 February 2013 onwards. Later, the charges were changed to the offence of resistance or violence against public officials, posing a threat to their life. In March 2014, he was sentenced to seven years in prison. But even before that, on 25 February 2013, he had lodged his first complaint with the European Court of Human Rights, relating mainly to the pre-trial detnetion and the abuse of power by the Azerbaijani authorities, who in his view tried to silence an opposition politician.
Issuing its judgment on 22 May 2014, rather fast for Strasbourg, the Court found violations of the right to liberty (Article 5 ECHR), as Azerbaijan had not shown that there was a "reasonable suspicion" that Mammadov had committed an offence nor that there had been a genuine review of lawfulness of his detention. Due to statements about his guilt from the public prosecutor and the Ministry of the Interior, the Court also found a violation of the presumption of innocence (Article 6(2) ECHR). But no doubt the most damning part of that judgment for Azerbaijan is that the Court also found a violation of Article 18 ECHR in conjunction with Article 5. Azerbaijan was to pay 20,000 euros for non-pecuniary damage suffered by Mr Mammadov. However, the judgment did not specify which particular measures Azerbaijabn should take to remedy the situation, releasing Mr Mammadov being the obvious one among those.
Notably, the finding of a violation of Article 18 entails that the Court concluded that Azerbaijan had acted in bad faith under the Convention. The Court agreed with Mr Mammadov's contention that the real reason to detain and convict him was not because they suspected him of having committed a crime, but rather to silence or punishing him for his critiques of the government. The object of Article 18 is to prohibit the misuse of power and violations are very rarely found. In fact, there are less than a dozen in the Court´s entire case-law - several others of which also against Azerbaijan by the way (see for an overview the Court´s case-law guide on Article 18, avaialble in English, French and ... Azerbaijani!). Since this points to such fundamental problems with the rule of law, the issue of Article 18 would also resurface in the infringement proceedings later on.
In a separate, later application, Mammadov also complained about grave inadequacies in the trial leading up to his conviction. The Court, in the second Mammadov judgment of November 2017, concluded that his trial had indeed been unfair and found a violation of Article 6(1) ECHR.
From supervision to infringement
As in the aftermath of all Strasbourg judgments in which Convention violations are found, the arena of contention then shifted to the Committee of Minsters, the body responsible for the supervision of implementation of judgments. In a series of decisions and interim resolutions, the Committee called upon Azerbaijan to fully remedy the situation and to immediately and unconditionally release Mr Mamamdov. Because of the violation of Article 18, the case was seen as so important that for many years it was discussed, and this is very exceptional (see the clear overview by Lize Glas here), at each of its human rights implementation meetings. As Başak Çali notes on Verfassungsblog in her comment on this week's judgment, Azerbaijan emphasized that the original judgment itself had not ordered it to release Mammadov. Such was the dragging of its feet by Azerbaijan, that eventually, in 2017, the discussion in the Committee reached its boiling point. A sufficient number of states (under Article 46(4) a two-thirds majority is necessary) simply lost patience and trust in Azerbaijan to such an extent that in June of that year the option of infringement proceedings was first floated. In September the Secretary-General of the Council of Europe, Thorbjørn Jagland, called upon the Committee to actually take that step and in October, Azerbaijan was notified of the Committee's intention to launch infringement proceedings. Finally, in December 2017 the proceedings were formally started. In its interim resolution, the Committee held:
"[B]y not having ensured the applicant’s unconditional release, the Republic of Azerbaijan refuses to abide by the final judgment of the Court; Decides to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1".
As a point of note, all of this relates to the first Mammadov judgment, although the developments surrounding the criminal trial against him (the issue of the second judgment) of course played a big role in assessing whether Azerbaijan was implementing judgment No. 1. Not in the least because of timing, as Mammadov No. 2 was issued in November 2017, right in between the Committee's notification of intention and the actual launch of the proceedings.
The judgment itself
And so the ball, or the hot potato, returned back to the premises of the European Court of Human Rights. And so the Court, taking up this new role, had to assess implementation of its own judgment, a function normally accorded to the Committee of Ministers in the Strasbourg system. By some the infringement procedure has been called a nuclear option, but this comparison no longer works as its very use in this case shows that the deterrent effect of its mere existence was not sufficient. Nor are its outcomes of the scale of a nuclear explosion. However, there was some effect, crucial for the applicant. While the Committee of Ministers kept the issue on its agenda and kept calling for its release and while the Court was considering the issue, on 13 August 2018, Mr Mammadov was released as a result of an Appeal's Court judgment in Azerbaijan. A year later, in March 2019, the Supreme Court amended this judgment, taking away the probationary conditions. But overall, the conviction still stood - even if no longer detained, Mr Mamadov still had a criminal record under domestic law.
In the procedure itself, apart from the applicant and the state, the Committee of Ministers also provided comments, all of them also giving input on the situation after Mammadov's release. The Court dismissed Azerbaijan's argument that as a result of the release, there was no longer a need to discuss the issue - specifically pointing to the fact that the Committee of Ministers had not decided to withdraw the proceedings (paras. 143-146).
As this was the first judgment of its kind, the Grand Chamber of the Court had to set out certain boundaries on how it would deal with the case. First, it tried to elucidate its own task under the infringement proceedings. From the drafting history of Protocol 14, it concluded that the main aim of such proceedings was to "increase the efficiency of the supervision proceedings – to improve and accelerate them." (para. 160). It also noted that the Committee of ministers had developed an extensive acquis in its supervision of implementation of judgments and found (para. 166):
"[T]there is no indication that the drafters of the Protocol aimed to displace the Committee of Ministers from its supervisory role. The infringement proceedings were not intended to upset the fundamental institutional balance between the Court and the Committee."
As to the material scope of what was to be considered under these infringement proceedings, the Court identifies that even if the Committee of Minister's request was wide, the supervision practice of the Committee shows that actually its focus was on the invidual measures (Mr Mamamdov's requested unconditional and immediate release) and that thus "the essential question in this case is whether there has been a failure by the Republic of Azerbaijan to adopt the individual measures required to abide by the Court’s judgment regarding the violation of Article 18 taken in conjunction with Article 5" (para. 176). The other elements in the case, of just satisfaction and of general measures, could in principle fall within the scope of infringement proceedings, but in this case they did not require "detailed examination" (para. 177). The former because the monetary compensation had been paid and the later "as a matter of procedure that any general measures required in the present case should be supervised in the context of other similar cases" (ibid.). The Court then goes on to mention that the Committee of Ministers is dealing with a number of other Article 18 cases against Azerbaijan. On the wider, systemic issues of the rule of law in Azerbaijan, the ball is thus kicked once again to the courtyard of the Committee of Ministers. This may be the most disappointing element of the judgment to some, as one might expect the Court, once the very heavy option of infringement proceedings is used by the Committee, that the Court obliges by going beyond the - in itself very important - finding of lack of "good faith"" in securing Convention rights by Azerbaijan. Maybe the hot potato metaphor is the best to use here after all... But then, others may argue this is not the Court´s role.
In then reviewing, within this limited material scope, whether Azerbaijan has complied with the Court's original judgment, the Court makes some very important points. It states that its own judgments are declaratory and rarely indicate specific measures to be taken. But "the absence of an explicit statement relevant to execution in the first Mammadov judgment is not decisive for the question whether there has been a failure by Azerbaijan to fulfil its obligations under Article 46 § 1. What is decisive is whether the measures taken by the respondent State are compatible with the conclusions and spirit of the Court’s judgment" (para. 186). In the particular case, since the imposition of charges against Mammadov had been contrary to Article 18, "the Court’s finding of a violation of Article 18 in conjunction with Article 5 of the Convention in the first Mammadov judgment vitiated any action resulting from the imposition of the charges" (para. 189). And in no way had Azerbaijan shown that it was impossible for it offer restitutio in integrum the situation along those lines (an exception granted under general international law, paras. 190-194). Here the Court buttresses the stance taken by the Committee of Ministers.
A separate issue was the temporal scope to be considered in answering whether a state complies with a judgment of the Court. On that issue, the Court decided that it would not assess ex nunc, but that the starting point should be the moment of referral to the Court by the Committee of Ministers (paras. 170-171). In this case, that moment was 5 December 2017 and thus before the release of Mammadov from prison and before the final domestic judicial decisions. Applying this restricted temporal delimitation, the Court mostly looked at the compensation paid and an initial action plan of Azerbaijan. The Court did also mention the release and the later domestic judgments, but notes that those postdate the start of the infringement proceedings (para. 2016). In conclusion, it holds that the limited steps taken are insufficient.
In both dimensions, material and temporal, the Court thus does not turn an entirely blind eye to the wider context (general measures, later developments), but neither does it evaluate it in detail. In that respect, this judgment, which should have helped to clarify, still leaves a lot of flexibiltiy (or unclarity, depending on how one looks at it). It certainly offers the possibility for the Committee of Ministers to be much more specific in future cases, if it wants the Court to pronounce itself on either a wider general measures to be implemented by the state or more recent implementation developments. The current judgment, through these limitations, in this sense leaves one with the feeling that the Court is only stating the very obvious (that Azerbaijan was clearly going against the Convention obligatinos by not acting in good faith) but still not unequivocally solving the case by giving a clear pronouncement on what would be sufficient action to be taken in the wider context. The result may be that Azerbaijan may just continue dragging its feet in the Committee of Ministers.
The Court ends by stating (para. 217):
"[T]hose limited steps do not permit the Court to conclude that the State party acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment."
A final point of note: while the judgment was unanimous, three concurring opinions, by no les than seven judges in total are attached to the judgment. Some the critiques of the Court´s reasoning are so strong and fundamental that - as Kanstantsin Dzehtsiarou tweeted soon after the judgment - two of those do not read as concurring opinions from a legal perspective. It seems that the importance of sending a unanimous signal to the state concerned in this crucial judgment even impacted the labelling of the opinions.
Conclusion: dark clouds remain
Within hours after the judgment, Mammadov was allowed to brief representatives of the Committee of Ministers through video conference (see the footage here). While he showed gratitude for the great help by the Council of Europe´s institutions, he still deplored that the Azerbaijani authorities do not allow him to run for political office nor have expunged his criminal record.
The Mammadov saga plays out against a background full of dark political clouds: the very contested role of Azerbaijan in Council of Europe bodies. Just last year, an independent report commissioned by the Parliamentary Assembly was published in which problems of corruption connected to Azerbaijan's wheeling and dealing in the Assembly itself were highlighted. Undoubtedly, the current infringement procedure gives new impetus to discussions, about that country and others, on the point at which the flouting of Council of Europe commitments and standards reaches such a crisis point that a state should be ousted from the organization. The huge dilemma remains the same however: whereas such a step might have some political effect to make a state change course, it would lead to barring off the Strasbourg Court as an institution of last resort for human rights victims in the countries at stake. It is not just the oil from a resource-rich country that has a foul smell and nasty stick in this case.
Tuesday, 28 May 2019
The second issue of our Netherlands Quarterly of Human Rights (NQHR) of this year is now online. It includes two articles on the European Convention on Human Rights:
* Noëlle Quénivet, 'The obligation to investigate after a potential breach of article 2 ECHR in an extra-territorial context: Mission impossible for the armed forces?':
'The growing number of military operations conducted by States Party to the European Convention on Human Rights abroad has led to a concomitant surge in court cases, notably relating to the duty to investigate an attack resulting in the death of an individual. Using the example of the British armed forces abroad, this article contends that the principles enunciated by the European Court are difficult, sometimes impossible, to fulfil when military operations are carried out abroad. The Court at times appears to fail to recognise the inherent challenges faced by States in complying with these principles. This article thus suggests that the Court offers a more flexible approach towards compliance with the procedural aspects demanded under Article 2 ECHR, especially regarding the initial phases of the application of Article 2 ECHR, when the armed forces are directly implicated in the procedure.'
* Mark Klaassen, 'Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases':
'The European Court of Human Rights plays a subsidiary role in the protection of the rights and freedoms set forth in the Convention. To enable national authorities to perform their primary role, it is important that the Court offers sufficient guidance on the interpretation of the Convention. It has already been argued that the case law of the Court on the right to respect for family life in immigration cases, lacks consistency in terms of procedural and substantive protection. The inconsistency in the case law is mostly the case in the admission and regularisation case law. This manifests itself in specific issues including the determination of whether an interference has occurred as well as the court’s determination of the best interests of the child. Consequently, the case law difficult to apply by national authorities which leads to widely diverging practices by the Contracting Parties. The objective of this article is to outline the differences and inconsistencies in the different forms of immigration cases and the corresponding compliance tests of the Court. The article aims to offer a solution that would enable both the Court and the Contracting Parties to differentiate the level of protection that is offered by Article 8 in immigration cases, while providing sufficient guidance to national decision-making authorities and judiciaries so that they can efficiently and effectively exercise the primary role they play in the protection of the right to respect for family life in immigration cases.'
Friday, 17 May 2019
Stuart Wallace of the University of Cambridge has published a new book on 'The Application of the European Convention on Human Rights to Military Operations' with Cambridge University Press. The book gives a systematic overview of the key discussions on the topic in the past years, including of course extraterritorial application of the ECHR, but also substantive and procedural obligations under the right to life, and derogations, amongst others. This is the abstract:
'The European Convention on Human Rights is being applied to military operations of every kind from internal operations in Russia and Turkey, to international armed conflicts in Iraq, Ukraine and elsewhere. This book exposes the challenge that this development presents to the integrity and universality of Convention rights. Can states realistically investigate all instances where life is lost during military operations? Can the Convention offer the same level of protection to soldiers in combat as it does to its citizens at home? How can we reconcile the application of the Convention with other international law applicable to military operations? This book offers detailed analysis of how the Convention applies to military operations of all kinds. It highlights the creeping relativism of the standards applied by the European Court of Human Rights to military operations and offers guidance on how to interpret and apply the Convention to military operations.'
Monday, 13 May 2019
As every year, the University of Bologna, King’s College London and the University of Strasbourg are co-organising a summer school on “The Protection of Fundamental Rights in Europe” from 23-28 June. The 19th edition of this long-running course is hosted again in the Castle of Bertinoro and focuses on the protection of fundamental rights in both the EU and ECHR systems. This is the announcement on the website:
'The Summer School aims to provide graduates, practictioners and young researchers (Ph.D. candidates) with an in depth background of the protection of fundamental rights at European level. The general courses are about the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. The single modules tackle topics alike asylum and migration, EU citizenship, relationship between the CJEU and the ECHR, the margin of appreciation doctrine, constitutional transitions and religious freedom.
The course is composed by 30 hours of frontal lectures from Monday to Friday 9:00-13:30 and 15:00-16:30. The teaching method encourages students to have a proactive dialogue with lecturers.'
All information can be found here.
Friday, 10 May 2019
On 10 April, the European Court of Human Rights in Strasbourg handed down its first advisory opinion on a substantive issue under the European Convention on Human Rights (ECHR), a competence given to the Court under Protocol 16 to the Convention. The opinion, delivered upon the request of the French Court of Cassation, related to a very specific family law matter, namely ‘the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother’, as the Court phrased it.
A new judicial tool
The advisory opinion procedure is a new power in the Court’s toolkit. Protocol 16, which entrusts the Court with the power to hand down these opinions was negotiated with the aim of enhancing interaction between the Court and national authorities – specifically domestic Courts. The Protocol entered into force on 1 August 2018 and enables the highest courts of State Parties to the Protocol to request the Court to give an advisory opinion on “on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto” (Article 1 of the Protocol). Thus, it serves to elucidate the substantive provisions of the ECHR in order to give guidance to domestic courts in their own judicial task. In this sense, it is a relatively unique feature of interaction between national and international courts, comparable to a certain extent to the preliminary ruling procedure of the Court of Justice of the European Union (EU). One of the key differences being that in the EU context lower courts can also ask questions and highests courts in some cases are obliged to ask questions.
The European Court of Human Rights is best known for its work in contentious proceedings, both between alleged victims of human rights violations and states and in inter-state cases. Its rulings in such cases are binding, just like in instances of deciding upon interim measures. Before the entry into force of Protocol 16, the Court did already have the possibility to give advisory opinions, but these could only be delivered upon request of the Council of Europe’s Committee of Ministers and could not relate to the Convention’s substantive rights. They concerned, for example, procedural issues such as the election of judges to the Court. In the case of the new advisory procedure both the audience, scope and aims are thus different.
As the Explanatory Report to Protocol 16 clarifies, the new procedure aims to serve two purposes: fostering the dialogue between courts and strengthening the constitutional role of the European Court. Both in turn are geared towards a more effective protection of the rights laid down in the ECHR. Thus the procedure should enable domestic courts to directly include ECHR benchmarks into their judicial decision-making – without waiting for an alleged victim to litigate a case all the way to Strasbourg – and it would enable the European Court to focus on issues of interpretation of the Convention, leaving the detailed context-specific decision to the domestic court. The idea was both to help speed up fundamental rights litigation, increasing the cooperation between the two levels of courts, and to prevent large amounts of (often repetitive) cases from piling up in Strasbourg by ‘solving’ them at the national level. This latter goal is closely tied to the increased emphasis on subsidiarity in the past years, trying to resolve issues at the national rather than het European level. It does, of course, lead to a slight reshuffling of roles. And that is exactly the reason why this first Advisory Opinion under Protocol 16 was so highly anticipated.
Background of the case
The case originated in the voyage of Dominique and Sylvie Mennesson, a French married couple, to California. They concluded a gestational surrogacy agreement with a woman there, using the gametes of Mr Mennesson and the egg of a female friend, as Mrs Mennesson was infertile, to create an embryo by way of IVF. The surrogate mother gave birth to twins in 2000. In a ruling, the Supreme Court of California recognised Mr Mennesson as the genetic father and Mrs Mennesson as the legal mother of the two girls. This formal recognition was reflected in the subsequent birth certificates. The legal troubles started when the parents asked the French authorities to transcribe the American birth certificates into the civil status register. The French authorities refused such a transcription, as they deemed it contrary to public policy. Surrogate motherhood was forbidden in France.
Eventually, in 2011, the Mennesson family took their case to the European Court, alleging violations by France of the rights to respect for private life and family life. The judgment in the Mennesson case was delivered in 2014. The Court held that the family life of the four (parents and children) had not been violated, but it did find a violation of the right to respect for private life of the two daughters under Article 8 ECHR. It held that it was not in the best interests of the children, especially of their right to identity, to deprive them of legal recognition due to the restrictions in French law, especially since Mr Mennesson was also the biological father.
Since that judgment, the Court of Cassation in France adjusted its case-law, enabling recognition by birth certificate transcription of at least the biological father in such situations, but not the mother when she was not the biological mother. Moreover, the Mennesson family had to apply for a revision of the earlier refusal to transcribe, so their legal fight was far from over yet. In the proceedings following that revision request, the Court of Cassation decided, and it was the first in Europe to do so, to avail itself of the new Advisory Opinion procedure in Strasbourg. The French court, in its request, clarified that for the mother alternatives to the birth certificate transcription existed: for intended mothers who were married to the recognised father, adoption of the children was possible. The issue was basically whether such an alternative was sufficient under Article 8 ECHR. As one commentator noted, even if the Court of Cassation itself presented the move as an opportunity to enter into institutional dialogue with the European Court, one of the aims of Protocol 16, it could also be seen as a “sign of caution” in a sensitive and complicated issue, in which the French authorities had earlier failed to comply with the ECHR.
The substance of the Opinion
On 12 October 2018, the Court of Cassation sent its request to the European Court, which accepted it early December. It asked two questions. The first was whether the refusal by the French authorities, in the particular circumstances of the case, meant that France was “overstepping its margin of appreciation” under Article 8 ECHR (and whether it mattered legally whether a child was conceived using the eggs of the ‘intended mother’ or not). The second question was, if the first question was answered affirmatively, whether adoption as an alternative would mean Article 8 was complied with.
On the first question, the European Court reiterated that, just like in its original Mennesson judgment, the child’s best interests was a particularly weighty factor in deciding such cases. And, in addition, it would look at the margin of appreciation. On the first factor it noted that the lack of recognition of the legal relationship between mother in children has a negative impact of various aspects of a child’s life. The absolute impossibility for registration as in the French case, made it impossible to examine a situation to “be examined in the light of the particular circumstances of the case” (para. 42). On the factor of the margin of appreciation, the Court noted that – based on a comparative-law survey it undertook, there as no consensus in Europe on the issue. This would normally mean, especially in the field of moral and ethical issues, a wide margin of appreciation for states. However, the fact that particularly important aspects of the right to respect for private life were at stake reduced the margin of appreciation. The Court concluded on this point that “the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”” and that this would apply “with even greater force” (para. 47) in cases when a child was conceived using the eggs of the “intended mother.”
This conclusion made an answer to the second question necessary. On that point, the Court held that alternatives to transcription into a birth registry, such as adoption, may be used “the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”.” Here State Parties to the ECHR have a larger margin of appreciation, the second point relates not to the issue of ‘whether’ but rather of ‘how’ to comply with the Convention. Specifically, the European Court held that recognition of the relationship (between children and intended mother), if legally established abroad, should be possible at the latest when the relationship had become a practical reality. This should be possible under a procedure laid down in national law and implementation of such alternatives should be prompt and effective. It is then for domestic courts to decide whether in a particular context these requirements are met.
What then to make of this very first Advisory Opinion? It is important to note that the significance of the Opinion certainly stretches far beyond the possible usefulness for the Mennesson family. Substantively, it is of course important that the Grand Chamber of the European Court clearly tried to formulate answers that should be useful to the domestic court at hand. In a step-by-step fashion it went into the two questions posed to it by the French Court of Cassation and attempted to provide clarity. Whether this has been achieved is debatable. Yes, in the sense of indicating that a full refusal would violate the Convention but that the provision of effective alternatives such as adoption would comply with it. No, in the sense that – just like a fractal on which one zooms in – the challenges are just transferred to different, more detailed issues (when does a relationship become a “practical reality”; what is a ‘prompt and effective’ alternative etc.). The Opinion has therefore already met with some criticism.
In order to assess which view makes more sense, it is important to go back to the goals of the Advisory Opinion procedure: the dialogue between courts and strengthening the constitutional role of the European Court. On these issues the Court itself dedicates some preliminary considerations in the Opinion itself. It states that the very goal of the procedure is not to transfer the dispute to the European level, but rather to provide guidance to national courts, so that the latter can adjudicate on the matter. Entirely in line with the subsidiarity principle, domestic courts can use (or not use) the advice of the European Court as they see fit. In trying to formulate relatively general answers and identify weighing factors, the Court in Strasbourg does really try and put on its constitutional cloak. At the same time, this is done in a very delimited way: opinions under this procedure must be confined to “points directly connected to the proceedings at domestic level” (para. 26). The efficiency gains are then made through European guidance that national courts can subsequently use in similar cases. Those who were hoping for a type of lengthy general comment, in the vein of United Nations human rights treaty bodies, on the issue of gestational surrogacy arrangements will thus be disappointed by this relatively short Opinion of the Court.
Apart from these explicit considerations in the text of the Opinion itself, the Court also undertakes an exercise in judicial signalling to ECHR State Parties in other ways. The first issue of note for a genuine dialogue is of course that the request for an Opinion was accepted by the Court – a rejection of the very first attempt – the Court is not obliged to accept all request – would have been very awkward signposting, especially as many States have not yet ratified Protocol 16.
Secondly the timing is notable: the Court dealt with the issue in a very swift way (virtually all judgments of the Court take much longer), with less than six month elapsing between request for and delivery of the Opinion. Although one may note that by now the twin girls, born in October 2000, are now 18 year-olds – that is how long legal battles may take – and the Court de Cassation has not even decided yet of course. Those six months were used to provide maximum input, as allowed under Protocol 16 (input was received from the Mennesson family, as well as written interventions by three other State Parties and several other institutions and NGOs), but without losing time by way of an oral hearing. The comparative-law research was also done within that relatively short-time span. The signal here to domestic court seems to be: yes, using this procedure will halt your domestic case, but this pause will be kept as short as possible. The signal to possible interveners seems to be: input welcome, but swiftly please. And the Court also in this first Opinion explicitly states about such written observations that “its task is not to reply to all grounds and arguments submitted to it or to set out in detail the basis for its reply” (para. 34). Again, the self-identified role here seems to be: trying to be useful to domestic courts, swiftly and to the point.
In conclusion, the Advisory Opinion certainly does not solve all issues related to gestational surrogacy. But what it does represent is an attempt to provide useful and relatively quick decision-making tools, handed down by an international court in its constitutional cloak to the highest domestic courts that find it useful to ask for it.
This blogpost is a cooperation between the IACL-AICD Blog and the ECHR Blog.
Tuesday, 23 April 2019
The University of Liverpool School of Law and Social Justice is organizing the conference 'Loyal Co-Operation within the System of the European Convention on Human Rights' on 10 and 11 May. The extensive two-day programme features new research presentations from scholars across Europe and several Strasbourg judges will participate in the discussions. The conference will go into key questions of co-operation with and resistance to Strasbourg institutions by ECHR State Parties, and will include several country case studies. The full programme can be found here. Registration is open now and can be done online.
Wednesday, 17 April 2019
In its series of case-law guides, the Court has published online a new one on Article 17, the European Convention's provision on the abuse of rights. This Article provides:
"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."
The case-law guides give an overview the Court's main judgments, organised by Convention article. In this case the overview is pretty complete considering the relatively limited case-law. The guide on Article 17 is currently only available in English. A full overview of the existing case-law guides can be found on the Court's website. Their systematic presentation and the inclusion of web links to all the cited judgments make it an easily navigable and very useful resource.