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.'

    Wednesday, 13 February 2019

    New Book on European Consensus and the ECHR

    Panos Kapotas of the University of Portsmouth and Vassilis P. Tzevelekos of the University of Liverpool have just published the edited volume 'Building Consensus on European Consensus - Judicial Interpretation of Human Rights in Europe and Beyond' with Cambridge University Press. The consists of three parts: (I) Understanding European Consensus; (II) Appraising European Consensus; and (III) Consensus Analysis Outside the ECHR System. The latter part looks into the Inter-American system, EU law, and even US Supreme Court case-law, among others. This is the abstract of the book:

    'Should prisoners have voting rights? Should terminally ill patients have a right to assisted suicide? Should same-sex couples have a right to marry and adopt? The book examines how such questions can be resolved within the framework of the European Convention of Human Rights. 'European consensus' is a tool of interpretation used by the European Court of Human Rights as a means to identify evolution in the laws and practices of national legal systems when addressing morally sensitive or politically controversial human rights questions. If European consensus exists, the Court can establish new human rights standards that will be binding across European states. The chapters of the book are structured around three themes: a) conceptualisation of European consensus, its modus operandi and its effects; b) critical evaluation of its legitimacy and of its outputs; c) comparison with similar methods of judicial interpretation in other legal systems.'

    Thursday, 7 February 2019

    New Book on Sexuality and the ECHR

    Damian A Gonzalez Salzberg (University of Sheffield) has published a new book with Hart Publishing, entitled 'Sexuality and Transsexuality Under the European Convention on Human Rights - A Queer Reading of Human Rights Law'. This is the abstract:

    'This book undertakes a critical analysis of international human rights law through the lens of queer theory. It pursues two main aims: first, to make use of queer theory to illustrate that the field of human rights law is underpinned by several assumptions that determine a conception of the subject that is gendered and sexual in specific ways. This gives rise to multiple legal and social consequences, some of which challenge the very idea of universality of human rights. Second, the book proposes that human rights law can actually benefit from a better understanding of queer critiques, since queer insights can help it to overcome heteronormative beliefs currently held. In order to achieve these main aims, the book focuses on the case law of the European Court of Human Rights, the leading legal authority in the field of international human rights law. The use of queer theory as the theoretical approach for these tasks serves to deconstruct several aspects of the Court's jurisprudence dealing with gender, sexuality, and kinship, to later suggest potential paths to reconstruct such features in a queer(er) and more universal manner.'