Monday, 17 June 2019

New ECHR Readings

Please find below a new batch of academic ECHR readings:

* 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

New Case-Law Guide on Protection of Property

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

Call for Contributions to ECHR Domestic Implementation Handbook

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. 

Procedure

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 director@einnetwork.org and contact@einnetwork.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 director@einnetwork.org, Cc: contact@einnetwork.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

Finding and Understanding ECHR Case-Law

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

First Infringement Proceedings Judgment of the European Court : Ilgar Mammadov v Azerbaijan

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

New ECHR Articles in June Issue of NQHR

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

New Book on the ECHR and Military Operations

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

Summer School on Protection of Fundamental Rights in Europe

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

Analysis: The Strasbourg Court's First Advisory Opinion under Protocol 16

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.

Judicial signalling

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

Conference on Loyal Co-operation in the ECHR System

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

Case-Law Guide on Article 17 ECHR

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.

Monday, 15 April 2019

New ECHR Articles in Human Rights Law Review

The first issue of 2019 of the Human Rights Law Review (vol. 19, no. 1) includes a number of ECHR-focused articles:

* Alice Donald & Anne-Katrin Speck, ‘The European Court of Human Rights’ Remedial Practice and its Impact on the Execution of Judgments’, pp. 83-117:

'This article analyses the developing approach of the European Court of Human Rights to the indication of specific non-monetary individual or general remedies and the impact of this practice on the execution of its judgments. It draws on interviews with Judges of the Court and officials in Council of Europe institutions, and a statistical analysis of pilot judgments and judgments that invoke Article 46 of the European Convention of Human Rights delivered between 2004 and 2016. The article argues that the Court’s remedial practice is fluid and pragmatic, with differences of perspective between Judges. It discusses the factors that influence judicial decision-making, and examines the implications of the Court’s remedial approach both for its ‘horizontal’ relationship with the Committee of Ministers and its ‘vertical’ relationship with states. It concludes that, from both these perspectives, the door is open to continued evolution, if not revolution, in the Court’s remedial practice.' 

* Sofia Galani, ‘Terrorist Hostage-taking and Human Rights: Protecting Victims of Terrorism under the European Convention on Human Rights’, pp. 149-171:

'The 2004 Beslan school siege by Chechen gunmen and the Russian responses to the attack demonstrated the tremendous impact a terrorist attack and a state’s anti-terrorist operations can have on the human rights of victims. The violations of the victims’ human rights were examined by the European Court of Human Rights in Tagayeva v Russia (2017), which this article argues is a landmark case in that the Court placed the human rights of victims at the centre of its concerns and reinforced the idea that states remain bound by the European Convention on Human Rights in large-scale anti-terrorist operations. The principal goal of this article is to examine the positive and procedural obligations of states towards the victims as outlined by the Court and to assess how this case might shape future responses to terrorist attacks. It will be argued that when states respond to a terrorist hostage-taking, they have to focus primarily on the human rights of hostages abducted within or beyond their borders on land or at sea.' 

* Philippe Yves Kuhn, ‘Reforming the Approach to Racial and Religious Hate Speech Under Article 10 of the European Convention on Human Rights’, pp. 119-147:

'At present the European Court of Human Rights employs a two-track approach to racial hate speech and religiously offensive speech, respectively. Further, the jurisprudence under Article 10 of the European Convention on Human Rights currently privileges journalistic or scholarly, over creative or artistic, forms of religious criticism. However, in this article it is argued that the ‘gratuitously offensive’ test for religiously offensive speech requires reform, while a consistent approach to racial hate speech cases is equally necessary. By building on Waldron’s account of the harm in hate speech, a single Article 10 test for both racial and religious hate speech is proposed. This new test focuses on harm in the sense of seriously undermining the target’s assurance to a status of equal worth in the community. It abandons the unhelpful race/religion dichotomy in the Article 10 jurisprudence, and is more responsive to the political reality of tense public discourse surrounding issues of race and religion in Europe in the wake of the Syrian refugee crisis and Brexit.' 

Thursday, 11 April 2019

New Judges Elected in Respect of Turkey and Malta

Earlier this week, the Parliamentary Assembly of the Council of Europe (PACE) elected two new judges to serve 9-year terms at the European Court of Human Rights. In respect of Malta, Lorraine Schembri Orland was elected with an absolute majority of votes cast. Judge Schembri Orlan currently presides over Malta's Civil Court, which also has jurisdiction over human rights matters. She has been very active throughout her career on non-discrimination and women's rights issues, co-drafting legislative reforms to integrate the norms of the UN's CEDAW Convention into Maltese law, advising on gender mainstreaming in the public sector and actively combatting domestic violence. She is also the first woman ever to be elected as judge to the European Court in respect of Malta. This was statistically guaranteed, as Malta submitted a list of three women to PACE (selected out of four timely applying candidates). 

There is no small irony here, as Malta became infamous in this context in 2009 during the last elections, when its lists of submitted candidates were rejected three times for featuring only male candidates. PACE deputies were very concerned about the argument of the Maltese government at the time that no qualified women could be found in such a small State Party for the position of a judge in Strasbourg. The policy of PACE is that "to ensure gender-balance on the Court, states are also asked to put forward at least one candidate from "the under-represented sex" unless there are exceptional circumstances." This in turn was the result of the European Court itself - in the context of that same discussion with Malta- issuing one of its first advisory opinions, in which it held that exceptional circumstances should be allowed for (no blanket ban by PACE on lists with only candidates of one sex, in short). As a pierce of context, currently about one third of the Court's judges is female, so an all-female list, like the current one was allowed.

In respect of Turkey, dr Saadet Yüksel was elected as the new judge, also with an absolute majority of votes. She is currently chair of the constitutional law department at Istanbul University and an associate professor there. One may note that all three candidates put forward by the Turkish government were academics and thus none came from the currently much-discussed Turkish judiciary. 

Good luck to both judges for the start of their work in Strasbourg later this year!

Monday, 8 April 2019

Book on Inter-State Complaints and the ECHR

I somehow missed to highlight this earlier, but last year an important book on the often-overlooked other contentious role of the Court (beyond deciding in individual cases) was published. Isabella Risini has written The Inter-State Application under the European Convention on Human Rights. Between Collective Enforcement of Human Rights and International Dispute Settlement in the series 'International Studies in Human Rights' of Brill-Martinus Nijhoff, This is the abstract:

'The Inter-State Application under the European Convention on Human Rights provides the first comprehensive monograph about the State-to-State human rights enforcement mechanism. The functions of the mechanism include also dispute settlement aspects, which are related to the compulsory jurisdiction of the Strasbourg Court. The study provides a full account of the development of the Inter-State Application under Article 33 ECHR and puts its case law in the relevant historical and institutional context. The analysis concludes with detailed reform considerations which are situated within the discussion about the role of the European Court of Human Rights. The focus lies on the possibility to address and improve systemic human rights deficits beyond the single case. The Court’s growing inter-State docket evidences the need for legal certainty.' 

    Tuesday, 2 April 2019

    Linos-Alexandre Sicilianos New President of the Court

    Although announced on April fools' day by the Court, one may assume this is serious and real news: the Court has elected from its midst Linos-Alexandre Sicilianos to serve as its new President. Judge Sicilianos had already been one of the Court's Vice-Presidents since 2017 and a judge at the Court since 2011. Before joining the Court, he was a well-known academic expert on human rights in Greece, serving amongst others on the UN Committee on the Elimination of Racial Discrimination. He will succeed the Court's current President Guido Raimondi on 5 May, who has headed the Court for around 3,5 years. Since terms rum for nine years at the Court and are non-renewable, Sicilianos will be President for just over a year, until 18 May 2020 at most (he started his term on 18 May 2011).

    The Court also elected ECHR a new Vice-President, the judge in respect of Iceland, Robert Spano. And a new Section President was also elected: Ksenija Turković, the judge in respect of Croatia. They will also start in their new functions on 5 May.

    Strasbourg watchers might surmise two things from the above: the Court's Presidents in the last decade have served for relatively short terms (between one and four years) and that has to do directly with the non-renewable terms of nine years. Thus, long terms such as the one of former President Luzius Wildhaber (1998-2007) have - even if theoretically still possible - become quite unlikely. Specifically, because one may assume the Court's judges will always want to elect someone amongst their midst with a solid experience in the inner workings of the Court and that takes a few years to acquire. Secondly, one may also infer that Robert Spano may stand good chances next year, as his term runs for several more years and he has just been appointed Vice-President. But then the judges on the Court may also decide it is time to elect in the near future for the first time a female judge to head the Court. Enough to occupy the minds of Strasbourg afficionados.

    Greek newspaper Ekatherimini mentioned that the election was hailed by the Ministry of Justice as a great honour for Greece and highlighted that Sicilianos is the first Strasbourg Court president from that country (one may note that, even though Ekatherimini is a quality newspaper, it sadly thinks the European Court of Human Rights is part of the EU....).

    For now, all the best wishes of success to the Court's new President!

    Monday, 25 March 2019

    New Book on General Principles of the ECHR

    My Utrecht University colleague and SIM fellow professor Janneke Gerards has just published her newest book General Principles of the European Convention on Human Rights with Cambridge University Press. It is available online now as an e-book and presents a reflection of her many years of meticulous study of the case-law and work of the European Court. Setting it apart from most ECHR overviews, this concise yet very nuanced work does not present the Convention as a sequence of substantive rights. Rather, it takes a cross-cutting approach by describing and analysing how the Court interprets and applies rights. It thus goes into the core interpretative principles developed by the Court, ranging from how it assess restrictions on rights to famous notions such as positive and negative obligations and the margin of appreciation. Thus, it presents a very precise and well-grounded way into the ECHR, a great device both for teaching at the advanced level as well as for research. As one of the judges of the European Court remarked, Janneke Gerards is "one of the best Court-watchers of our time" - I could not agree more; I literally know no one outside the Court who is so well-informed about the by now massive volume of its jurisprudence. Recommended! This is the abstract:

    'The European Convention on Human Rights is one of the world's most important and influential human rights documents. It owes its value mainly to the European Court of Human Rights, which applies the Convention rights in individual cases. This book offers a clear insight into the concepts and principles that are key to understanding the European Convention and the Court's case-law. It explains how the Court generally approaches the many cases brought before it and which tools help it to decide on these cases, illustrated by numerous examples taken from the Court's judgements. Core issues discussed are the types of Convention rights (such as absolute rights); the structure of the Court's Convention rights review; principles and methods of interpretation (such as common ground interpretation and the use of precedent); positive and negative obligations; vertical and horizontal effect; the margin of appreciation doctrine; and requirements for the restriction of Convention rights.'

    Congratulations, Janneke!

    Wednesday, 20 March 2019

    Conference on the European Court at 60

    As announced earlier through the call for papers, the University of Nottingham's human rights centre is organising its annual student human rights conference on Friday 29 March. The theme this year is 'European Court of Human Rights: 60 Years of Success?'  The full programme has now been published online (and features, amongst others, two of our Utrecht University SIM fellows, very proud of them!). Also features some great keynote speakers, including judge Eicke, Ed Bates and Nuala Mole. This is the conference abstract:

    'At nearly 60 years old, the European Court of Human Rights (ECtHR) has had to respond to major political and social changes, military conflicts and financial crises. Whilst there have been many successes during the ECtHR's impressive 60 year history, critics have also pointed to a number of failures. Accordingly, the 20th Annual Student Human Rights Conference aims to critically analyse the role of the ECtHR with a view to understanding how the Court and the European Convention on Human Rights have confronted both substantive and procedural challenges.

    The conference will question whether the ECtHR is still fit for purpose? What lessons have the last 60 years taught us and what more can we do to improve it? It will also address whether the rise of populism within CoE Member states has made the Court more restrained in its jurisprudence. Finally, the conference will explore whether “forgotten minorities”, such as Roma, and other vulnerable groups are adequately protected and whether the Court takes such vulnerabilities into account in its decision making.' 

    Monday, 11 March 2019

    Articles on ECHR in Newest Issue of NQHR

    The newest issue of our Netherlands Quarterly of Human Rights (NQHR), Volume 37, Issue 1, 2019, includes two articles with a focus on the European Convention:

    * Pieter Cannoot, 'The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition':

    'The European Court of Human Rights is the human rights monitoring body that has dealt with the largest number of cases related to gender identity and trans* persons. In this regard, it has recognised under Article 8 ECHR both a right to gender self-determination and a positive obligation for the State to adopt a procedure for legal gender recognition. However, Contracting States were given a wide margin of appreciation to set conditions for the legal recognition of a person’s actual gender identity, leading to the acceptance by the Strasbourg Court of pathologising requirements such as a diagnosis of gender dysphoria and compulsory sex reassignment surgery. This contribution analyses and conceptually explains this message of trans* pathologisation in the ECtHR’s case law. Subsequently, on a normative level, it argues that this case law cannot be upheld taking into account the international trend towards full trans* depathologisation, and the scope of the margin of appreciation that States (ought to) have in cases concerning gender identity.' 

    Mathieu Leloup, 'The principle of the best interests of the child in the expulsion case law of the European Court of Human Rights: Procedural rationality as a remedy for inconsistency':

    'According to Article 3 CRC, the best interests of the child should be a primary consideration in all actions concerning children. This article examines how the European Court of Human Rights applies this principle in expulsion cases that have an impact on the right to family life. A distinction is made between the cases where the expulsion measure is aimed at one of the parents and the cases where the child itself is the subject of the impugned decision. A critical examination of the available case law proves that the Court’s use of the principle is inconsistent in several areas. It is argued that the Court should adopt a procedural approach towards the principle. This would make the case law more consistent, while simultaneously increasing the children’s protection.' 

    Friday, 8 March 2019

    New ECHR Readings

    Please find below a new batch of recent academic publications on the European Convention on Human Rights and its Court: 

    * Floris Tan (Leiden University), 'The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?', Goettingen Journal of International Law, vol. 9, issue 1 (2018):

    'This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain.' 

    * Veronika Fikfak (Cambridge University), ‘Changing State Behaviour: Damages before the European Court of Human Rights’, European Journal of International Law, vol. 29, issue 3 (2018) pp. 1091-1125:

    'Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.' 

    * Maria Fanou (European University Institute) and Vassilis Tzevelekos (University of Liverpool), ‘The Shared Territory of the ECHR and International Investment Law’, in: Y. Radi (eds.), Research Handbook on Human Rights and Investment (Edward Elgar: 2018) pp. 93-136:

    'The chapter compares international investment law (ILL) with the ECHR system of human rights protection. First, analysis identifies key differences in the systemic features of the two regimes. Although they overlap to some extent in the protection they offer to property, they differ significantly. The ECHR system is unitary; unlike IIL, it operates on the basis of one single set of instruments. Mutatis mutandis, unlike IIL arbitration, the ECtHR is a last resort court that cannot be reached unless domestic remedies have been exhausted. IIL is available to foreign investors only; in the ECHR system the applicant’s nationality is irrelevant. The ECHR system is designed to cover a wide range of human rights -not only property/investment rights. Finally, the two systems differ significantly in terms of enforcement. The second step in the analysis focuses on property protection. To draw a parallel between the ECHR and IIL, the chapter discusses first the general framework of property protection under the ECHR and gives examples from the ECtHR practice with respect to foreign direct investment (FDI). Analogies are then drawn between the ECHR and key IIL standards. The chapter identifies similarities and differences regarding expropriation (focusing on indirect expropriation, the sole effects and police powers doctrines, and the function of proportionality), FET (focusing on equity and legitimate expectations the way these are protected by both regimes) and full protection and security, which is associated with due diligence and human rights positive effect. The third step in the analysis concerns limitations to investment/property rights. Occasionally, remedying or preventing human rights violations and the protection of general interest might make it necessary that states interfere with investment rights. Proportionality is crucial in this context as a tool allowing to establish priorities and assess the lawfulness of limitations. In comparison to IIL, the ECHR regime appears to better accommodate the idea of a fair balance between individual rights and general interest. Because the ECHR covers FDI from the perspective of human rights, it does not merely treat it as rights that need to be safeguarded, but also as a goal that can be limited when activities related to its promotion lead to the breach or endangerment of other human rights. Ultimately, even when the two regimes converge or overlap, the “tone”, i.e. the way they safeguard and promote FDI differs. This is the natural consequence of their differing orientation and teleology.'  


    'This book analyses the allocation of responsibility for human rights violations that occur in the context of border control or return operations coordinated by Frontex. The analysis is conducted in three parts. The first part examines the detailed roles and powers of Frontex and the states involved during joint operations, focussing on the decision-making processes and chains of command. The second and third parts develop general rules that govern the allocation of responsibility under public international law, ECHR law, and EU non-contractual liability law in order to apply them to Frontex operations. To illustrate the practical implications of the findings, the study uses four hypothetical scenarios that are based on situations that have in the past given rise to human rights concerns.

    The book concludes that whilst responsibility for most human rights violations lies with the host state of an operation, it often shares this responsibility with participating states who contribute large assets as well as Frontex. However, the book also exposes how difficult it is for individuals to find a place for bringing complaints against violations of their human rights suffered at the EU's external borders. This casts doubts on whether the current legal framework offers them an effective remedy.'