Wednesday, 23 September 2020

Online (and in-Person) Conference on Human Rights and Environmental Protection and the ECHR


On 5 October 2020, the European Court of Human Rights is hosting on its premises a conference on Human Rights and Environmental Protection. The conference will also be streamed online. The registration is open until 25 September. The full programme can be accessed here. Below is the description of the conference: 

'How to address human rights class-actions stemming from large-scale environmental pollution? Where to draw the line between a policy decision within the State’s margin of appreciation and a State’s failure to strike the right balance between conflicting interests? Whether to allow legal standing to applicants who vindicate collective and intergenerational rights? Ought the Court rely on the precautionary principle and adopt a new causation test in applications concerning global warming? Or should it rather refrain from taking up the role of Europe’s climate change tribunal? In the event violations are found, what measures of redress and prevention should be imposed on Member States? How to ensure better State compliance? 

Meaningful answers to these questions call for a general and conceptual reflection on the role of international human rights tribunals in reviewing Member States’ efforts to comply with their obligations under the environmental law to mitigate and adapt to the effects of the climate crisis and to stop nature’s degradation. 

The conference … aims at facilitating a debate between renowned practitioners and academic experts in the field of international environmental law and human rights.'

Monday, 21 September 2020

New Edition of the Book Freedom of Expression and the Internet by Benedek and Kettemann

Wolfgang Benedek and Matthias C. Kettemann have just published the second edition of the book Freedom of Expression and the Internet (Council of Europe). The second edition comes at a time when most of us express, receive, engage with, and create ideas and opinions in and through internet platforms. The book is available in print and pdf. Here is the publisher’s summary of the book: 

'Human rights matter on the internet. Without freedom of expression, people cannot participate in everything that the information society has to offer. Yet online free speech is in danger. Between state laws, private rules and algorithms, full participation in the online communicative space faces many challenges. This publication explores the profound impact of the internet on free expression and how it can be effectively secured online. 

The second, updated edition of this introduction into the protection of freedom of expression online answers essential questions regarding the extent and limits of freedom of expression online and the role of social networks, courts, states and organisations in online communication spaces. In clear language, with vivid examples spanning two decades of internet law, the authors answer questions on freedom of expression in cyberspace. Addressing issues from the protection of bloggers to the right to access online information, the publication also shows the importance of the standard-setting, monitoring and promotion activities of international and non-governmental organisations and includes a chapter on relevant national practice. It pays special attention to the role of European human rights law and the Council of Europe as this region’s most important human rights organisation.'

Friday, 18 September 2020

Registration for the European Human Rights Moot Court Competition is Now Open

The European Human Rights Moot Court Competition (EHRMCC) is a Europe-wide moot court competition dedicated to the European Convention on Human Rights. It was founded in 2012 by the European Law Student Association and the Council of Europe. 

 

The Competition simulates the proceedings before the European Court of Human Rights based on a fictional case. This year, the fictional case very much resembles the reality in which we live in, raising issues of state of emergency during an epidemic, protests against such measures, and State’s use of facial recognition technologies to identify those allegedly violating emergency measures. 

 

The registration of teams for the Competition is now open until 1 November 2020. As of last year, all teams must first compete at the regional level. The best 18 teams from the regional rounds compete in the final round in Strasbourg, in the Palace of Europe and the European Court of Human Rights. In addition to the experience that students gain from the Competition, all members of the winning team are invited for a traineeship at the Strasbourg Court. 

 

Good luck to all those participating in this year’s Competition!

 

As this is my first post as a co-editor, I avail myself of this opportunity to express how honored I am to join the ECHR Blog, and grateful to Antoine Buyse, as a founder and editor of this Blog, for his trust in me. 
 
I always considered this Blog as an important platform to keep those interested in the ECHR abreast of the ever-increasing developments related to the Convention system and engage in discussion of those developments. I join the ECHR Blog with the aim to further serve that goal.

 

Best wishes, Kushtrim Istrefi

 

Wednesday, 16 September 2020

Expanding the ECHR Blog - A New Face

 

Dear readers of the ECHR Blog, this blog is about to expand and renew! As some of you will know, keeping up a blog can be quite a daunting - yet very enjoyable - task. After more than 12.5 years and more than a 1000 posts of keeping up this blog all by myself since I founded it in May 2008, I am very happy that as of this week, this blog has an additional editor, my SIM colleague dr Kushtrim Istrefi. 

Kushtrim Istrefi is an assistant Professor with the Netherlands Institute of Human Rights (SIM) at Utrecht University. He holds a PhD from the University of Graz. His research focuses on the intersections of fundamental rights law and international security, with an emphasis on the ECHR. He has published on, among others, states of emergency, targeted sanctions, counter-terrorism, judicial activism and secession. Next to his academic work, Kushtrim has litigated complex cases on the right to life, prohibition of torture and the right to fair trial before the European Court of Human Rights and the EULEX Human Rights Review Panel. He also provided legal opinions to the Kosovo Constitutional Court and Kosovo Parliament on Kosovo-Serbia agreements. He was also a visiting researcher at the European Court of Human Rights itself. He is in the editorial board of the European Convention on Human Rights Law Review and coaches Utrecht University Law School's European Human Rights Moot Court Competition team. 

I am very happy to add such a committed expert on the ECHR to this blog's editorial team. Together we will run the blog, add new items and can be approached for any ECHR-related conference announcements, publications, etc. Kushtrim, welcome on board! 

Dear readers, in the coming time we will incrementally implement more changes - so please keep an eye out for new things!

Kind wishes, Antoine Buyse

Wednesday, 9 September 2020

Online Conference on 70 Years ECHR

Next week, on Thursday 17 September 2020, the Institute of International and European Union Law of the Law School of Mykolas Romeris University in Lithuania is organizing an international e-Conference on '70 years of the European Convention on Human Rights and Fundamental Freedoms: challenges and prospects'. You can register for it here. This is what the conference is about:

'The Conference is intending to mark the 70th anniversary of the European Convention of Human Rights, highlighting its crucial role as one of the key international and European judicial instruments.

The Convention is a living instrument, to be interpreted by the European Court of Human Rights in the present-day conditions (see, among other authorities, Vallianatos and Others v. Greece [GC], nos. 29381/09, 32684/09, § 84); an evolutive interpretation of the rights and freedoms enshrined in the text of the Convention enables necessarily the Court to take into account new technological and societal developments and changes that were unforeseeable 70 years ago. One of such nowadays challenges is the COVID-19 pandemic. Therefore, the effectiveness of the Convention rights protection at national and international level during the COVID-19 pandemic is a significant challenge for majority of European States, including Lithuania. 

The conference aims to create a platform for international scholars and practitioners, human rights activists and governmental bodies to participate in a discussion on the effective protection of human rights and a special role of the ECHR.'

Friday, 4 September 2020

New Session of MOOC on the ECHR

This coming Monday 7 September our Massive Open Online Course (MOOC) entitled 'Human Rights for Open Societies. An Introduction into the European Convention on Human Rights' will kick off again with, due to the pandemic, a big new group of prospective online students. You can still enroll, for free, if you would like to join! The course will run again for six weeks. This is what the course is about:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work.

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

You can watch the introductory video here:






Thursday, 3 September 2020

Guest Post on Court President's Visit to Turkey

Today a short guest post on the visit of the president Robert Spano of the European Court of Human Rights to Turkey, which has led to a lot of discussion in the Turkish human rights community. The Court's President amongst others met with the Turkish president, and according to the Court's own website, he "recalled the principles set out in the European Convention on Human Rights. He stressed the importance of the rule of law and democracy and in particular in those contexts the need to safeguard the independence of the judiciary and freedom of expression. Where the Court found a violation of the Convention, States were under a clear obligation to comply with that ruling and draw the necessary consequences. This was central to the effective functioning of the Convention system within the Council of Europe." This is the guest post:

Harry Hummer, senior policy adviser, Netherlands Helsinki Committee

'The visit of European Court of Human Rights president Robert Spano to Turkey today and tomorrow is big news in the country. Human rights defenders and victims of repression are concerned that he is given an honorary doctorate by one of the universities that summarily fired for political reasons a large number of academics after the July 2016 coup attempt. This issue has not been taken up by the Court yet – complaints have been referred back to a widely criticized Turkish appeal procedure – but in all likelihood will be in future.

The IHD, one of the oldest Turkish human rights NGOs, issued an open letter to Spano, expressing surprise that they had heard about the visit only from media reports and wondering why there are no civil society visits included in his programme.   

In addition to the honorary doctorate ceremony, Spano also spoke with high level Turkish government and judicial officials, and gave a speech at the Justice Academy.'

Wednesday, 2 September 2020

Special Issue ECHR and Wider International Law

The International Journal of Human Rights has published a special issue (vol. 24, issue 7, 2020) with a focus on 'the Relationship Between the European Convention on Human Rights and Wider International Law'. Most of the articles were published online earlier on already separately (some almost two years ago), but they are now bound together by an editorial. These are the contents:

* Geir Ulfstein , Morten Ruud & Andreas Føllesdal, Editorial: The European Convention on Human Rights and other parts of international law.


The ECHR and General International Law

* Geir Ulfstein, Interpretation of the ECHR in light of the Vienna Convention on the Law of Treaties.

* James Crawford & Amelia Keene, Interpretation of the human rights treaties by the International Court of Justice.

* Helen Keller & Reto Walther, Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3.

The ECHR’s Relations With Other International Human Rights Regimes 

 

 
* 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 ECHR and EU Accession

* Tonje Meinich, EU accession to the European Convention on Human Rights – challenges in the negotiations.

* Martin Kuijer, The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession.

Tuesday, 18 August 2020

New Book on Civil Justice and European Human Rights Jurisprudence

Andrej Auersperger Matić, of the European Parliament, has published a new book with Cambridge University Press entitled 'Just Words. The Effectiveness of Civil Justice in European Human Rights Jurisprudence'. This is the abstract:

'This book examines the role of the European Court of Human Rights in promoting standards of effective civil justice in Europe. It defines judicial effectiveness as composed of three main components, namely the length, cost and predictability of proceedings. Following a comprehensive review of the relevant case law, the book argues that the legal standards established by the Court in these areas are rather modest, and that the legal reasoning behind them is predominantly formalist. Rather than developing an understanding of the relevant policy choices that determine the institutional framework of civil justice, the Court bases its decisions on abstract concepts like 'reasonable time', 'access to court' and 'legal certainty'. By sidelining the key institutional issues such as resource allocation and incentives, the Court has produced a largely theoretical case law that actually has little value for persons who wish to enforce their rights in courts.

Includes both a comprehensive definition of effectiveness as a legal concept and associated European human rights law

Analyses European Court of Human Rights case law from a pragmatic and empirical perspective allowing the reader to understand the distinction between rights and policy as often superficial and judging as a complex practice

Critically examines the work of the European Court of Human Rights helping the reader to review the work of European courts with a more critical eye and understand its problems.'

Wednesday, 12 August 2020

New Edition of German-Language ECHR Handbook by Mark Villiger

The newest, third edition of Mark Villiger's famous German-language handbook on the ECHR has been published. Judge Villiger is a leading expert on the Convention and one of the Court's former judges. The book has a special focus on cases relating to Switzerland. This is the official title: Mark E. Villiger, Handbuch der Europäischen Menschenrechtskonvention (EMRK), mit besonderer Berücksichtigung der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte in Schweizer Fällen (Schulthess Verlag 2020). The book is also available in an electronic version. This is the publisher's abstract:

'Written in German, this completely revised third edition of the Handbook provides an up-to-date and comprehensive presentation of the European Convention and European Court of Human Rights. It offers quick and reliable answers to specific questions about the Convention’s substantial guarantees and the often complex procedures and manifold institutional aspects of the Court. Many cross-references are included to highlight the context, with frequent overviews summarising important principles of the Strasbourg case-law. Publication of the Handbook in 2020 coincides with the 70th anniversary of the Convention, providing readers with an invaluable overall assessment of the world’s most important international human rights court.

The author served for nine years as a judge at the Court, including three years as Section President.'

Saturday, 11 July 2020

The Netherlands Lodges Inter-State Complaint Against Russia

As all those following the Strasbourg system know well, the bulk of the work of the European Court of Human Rights is taken up by dealing with individual complaints. By contrast, Inter-State cases are exceedingly rare. Article 33 ECHR provides that any state party can "refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party", but this mechanism is rarely used, as it is considered a very heavy diplomatic step. One could almost say that only states that have extremely and long-standing strained relationships, due for example armed conflicts or large scale violence take such a step.

All the more surprising maybe that yesterday the government of the Kingdom of The Netherlands announced it is bringing an inter-state complaint against the Russian Federation to Strasbourg. The case relates to the downing of flight MH-17 of Malaysia Airlines over Eastern Ukraine during the conflict there, almost exactly six years ago - a tragedy that killed 298 people, the majority of whom were Dutch.

The move can be see in a wider mix of legal procedures that have been ongoing next to diplomatic efforts. The main suspects are currently criminally prosecuted under Dutch law, in absentia, after extensive research into the causes of the crash by the international Joint Investigation Team (JIT). The Netherlands has also, two years ago, together with Australia (another large group of the passengers on board of MH-17 were Australians) formally held Russia accountable under international law. In addition, a large number (380 people) of next-of-kin of those killed have lodged a complaint at the European Court of Human Rights against Russia in 2016 and 2018 about violations of Articles 2, 3, 8 and 13 ECHR, alleging that Russia 'was responsible for the destruction of the plane and for their relatives’ deaths, either directly or indirectly, and failed to investigate the disaster properly or to cooperate with other international investigations.' These joined cases have been communicated to Russia in April 2019. The Netherlands will intervene as a third party in these cases as well. 

Both the inter-state complaint and the third party intervention have been done to support the next of kin, the Dutch government has announced. Russia has always denied any involvement in the shooting down of the plane. The legal battle and the battle for truth will now thus be fought at several levels and in several legal fora. The step also means that other, diplomatic means, were not yielding results.

Russia has called the legal step "another blow" to the Dutch-Russian relationship and interestingly said this legal application "will only lead to further politicization and will complicate the search for the truth" as the New York Times reports. 

For a full overview of the two handfuls of inter-state cases in Strasbourg, see here. One may note that several other inter-state applications against the Russian Federation, lodged by both Ukraine and Georgia, are currently pending.

Here is the full pres release of the Dutch Government:

'Today, the Dutch government decided to bring Russia before the European Court of Human Rights (ECtHR) for its role in the downing of Flight MH17. By submitting an inter-State application, the government is sharing all available and relevant information about the downing of Flight MH17 with the ECtHR. The contents of the inter-State application will also be incorporated into the Netherlands’ intervention in the individual applications submitted by the victims’ next of kin against Russia to the ECtHR. By taking this course of action the government is offering maximum support to these individual cases.

What is more, by submitting this inter-State application, the Netherlands stands by all 298 MH17 victims, of 17 different nationalities, and their next of kin.
‘Achieving justice for 298 victims of the downing of Flight MH17 is and will remain the government’s highest priority,’ said foreign minister Stef Blok. ‘By taking this step today – bringing a case before the ECtHR and thus supporting the applications of the next of kin as much as we can – we are moving closer to this goal.’
The UN Security Council will be notified of this step as well.
The government attaches importance to continuing the meetings with Russia on the matter of state responsibility. The purpose of these meetings is to find a solution that does justice to the enormous suffering and damage cause by the downing of Flight MH17.'
Nearly six years since the downing of Flight MH17, which killed all 298 people on board, the pursuit of truth, justice and accountability remains the top priority for the Dutch government. The government has always said that it would not rule out any legal remedy to achieve this goal. This latest course of action brings us one step closer.'
And with this report, this blog goes on its annual Summer break!

Friday, 3 July 2020

New ECHR Readings

Please find below a new batch of recent ECHR-related publications:


* Aikaterini Tsampi, 'The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?', Netherlands Quarterly of Human Rights, vol. 38(2), pp. 134-155:

'The case-law on Article 18 of the European Convention on Human Rights has been evolving recently in a dramatic fashion. This evolution, which shaped a new doctrine on the misuse of power, focuses on the criminalisation of dissent within a State where undemocratic tendencies arise. The purpose of this article is to highlight these undemocratic tendencies and demonstrate that Article 18 ECHR addresses the systemic deficiencies in the balance of powers within a State. A violation of Article 18 ECHR occurs when the executive branch of government male fide tries to erode the social, political and economic contre-pouvoirs within a State and when the institutional contre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this erosion.'

* Vladislava Stoyanova, ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’, The International Journal of Human Rights, vol. 24(5) 2020, 632:

'This article examines how the common law tort of negligence can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, the common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of the common law certain analytical elements are more thoroughly considered and better articulated. These elements are: the distinction between a duty and a breach of duty; the level of foreseeability of harm; the proximity between the state and the person who has suffered harm; the reasonableness of imposing a duty; the causation between the harm and the alleged omission. Two main arguments emerge from the juxtaposition of the ECHR analysis against the common law. First, by failing to explicitly articulate and distinguish certain analytical elements, the ECHR positive obligation judgments offer little general guidance as to the limits of responsibility. Second, the analytical inquiry applied when adjudicating positive obligations is in tension with the idea of the correlativity between rights and obligations.' 

* Lisa McIntosh Sundstrom, ‘Seeking better judgment: LGBT discrimination cases in Russia and at the European Court of Human Rights’, The International Journal of Human Rights, vol. 24(6) 2020 750:

'Drawing upon data from field interviews, court records, and media and NGO reports, this article examines Russian cases claiming LGBT discrimination in domestic courts and at the European Court of Human Rights (ECtHR). The ECtHR has provided a less homophobic venue than Russia’s domestic courts for such claims, but its judgments have had little effect in Russia. We argue that the Russian case illustrates a paradox in the domestic politics of international human rights litigation. Activists from domestic contexts where discrimination is most prevalent are most likely to make successful claims in international human rights courts, while in those same contexts, informal discriminatory norms are likely to be strongest, resulting in those international court decisions having the least impact on the ground.' 

* M. Lufti Chakim, ‘The margin of appreciation and freedom of religion: assessing standards of the European Court of Human Rights’, The International Journal of Human Rights, vol. 24(6) 2020 850:

'Throughout history, the relationship between religion and State has posed challenges. The issue of religious symbols in the public sphere is an area where the European Court of Human Rights has granted a wide margin of appreciation to States. The main argument is that there is no European consensus on the issue and that national authorities are better positioned to determine when interference with the freedom of religion becomes necessary in a democratic society. However, this argument has evoked criticism that no strong legal reasons or standards have been applied to the doctrine of the margin of appreciation. This article aims to analyse the Court’s standards through an examination of the limits imposed on the doctrine under European supervision. Notwithstanding the controversy over its application, the doctrine does play an essential role in accommodating the diversity of human rights protection in Europe. Therefore, in future judgements, the Court should focus on a proportionality test against the State arguments, which would allow the Court to determine the applicability of the doctrine in the case of freedom of religion.'

* Veronika FikFak, ‘Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state’, Leiden Journal of International Law, vol. 33(2) (2020) 335:  

'This article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.' 

* Thiago Alves Pinto, ‘An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights’, Religion and Human Rights, vol. 15(1-2) (2020) 96:

'Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.'

Thursday, 18 June 2020

Guest Post: Implementation of the ECtHR’s judgments – A Call for Greater Transparency

It is my pleasure to host another guest post - this time by Ewa Garbarz, who is interning at the European Implementation Network (EIN):

Implementation of the ECtHR’s judgments – A Call for Greater Transparency 

The latest Committee of Ministers’ Annual Report on the status of execution of the leading judgments of the European Court of Human Rights (ECtHR) suggests a success in states’ compliance with the Court’s judgments and their implementation. Whereas the overall number of cases pending implementation is indeed decreasing, the disaggregation of the data demonstrates that the implementation of judgments in leading pending judgments still poses a significant problem. This matter has been the subject of criticism in the past; it has been pointed out that the lack of understanding of this issue as well as a clear evidence base makes it difficult for the key actors, such as Human Rights NGOs, funders and guardians of the ECHR system, to effectively address the problem of non-implementation.  

The independently undertaken research for this short blog has revealed that the obligation of ECHR state parties to report on the progress of leading judgment implementation is being neglected. This happens by causing substantial delays in submitting Action Plans and Action Reports or not filing them at all. Such information, despite being critical for both civil society and for the Council of Europe itself, is not easily accessible. As a result, the issue is not being dealt with properly. Transparent, state-by-state data regarding average implementation time and the rate with which Action Plans and Reports are submitted is essential for a swift and successful implementation and would be helpful for Human Rights NGOs in taking critical decisions on whether to prioritise work on litigation or implementation.

ECHR state parties are at liberty to choose the means of implementation which according to them are the most appropriate to address the violation. Nevertheless, they have a duty to report and collaborate with the Committee of Ministers in order to successfully comply with the judgment. Certain mechanisms of monitoring that process ensuring that states do in fact comply with the verdicts exist. However, the data regarding Moldova, Romania and Bulgaria collected and calculated in my research suggests that those mechanisms might not be sufficient and might not guarantee successful implementation or even collaboration from the part of the state. 

My research shows that in Romania the average time of implementation of the ECtHR’s leading judgments is 4 years, 6 years in Bulgaria, and 8 years in Moldova (data for March 2020). It is concerning that such delays exist, and that this data is not available to search in a state-by-state manner. The data is not easily accessible either on the HUDOC-EXEC search engine, or in the Committee of Ministers’ Annual Report. Using these main sources, it is not possible to easily find out the average length of the execution process per country – data crucial for national NHRIs, NGOs and anyone attempting to improve the national implementation rate or speed up that process, as it provides a full picture of how well the given state is working towards the successful implementation and fixing structural problems. It is believed that adding these options to the search engine could considerably aid NGOs and NHRIs working on the implementation improvement. 

For an average user of HUDOC-EXEC, the information with what success and frequency the states are filing Action Plans and Reports regarding specific judgments are not easily available either. It is a requirement for a state to provide an Action Plan with relevant information on the execution of the judgment of the ECtHR after that judgment has become final, and subsequently, Action Reports as soon as execution is deemed completed by the respondent State. Knowledge about Action Plans and Reports is important as it provides significant data about the rate of the compliance of states with the judgments. While HUDOC-EXEC allows to check for the overall number of submitted and awaiting documents, the information about the length of the procedure or the delay of a state in submitting an Action Plan or a Report is not that easily accessible. The only way to find out about the date of the submission of an Action Plan or state’s, applicant’s or an organization’s communications is a time-consuming and quite complicated procedure of reviewing each case individually. This makes that crucial piece of information inaccessible to the general public, and most importantly, to the organisations and institutions which otherwise equipped with that knowledge could have become involved putting pressure on the authorities in case of a delay. 

The fact that this information is essentially unknown results in no action being taken, whereas the research shows it is desperately needed; from the analysed data for Moldova, Bulgaria and Romania it appears that the average time since last the filed report (it being either Action Plan, or Action Report) for Romania is equal 2.2 years, for Bulgaria – 2.5 years and for Moldova – 6.3 years. In fact, apart from the issue of late submission of Action Plans, another pressing problem is that in some cases it is not received at all. It should be reminded at this point that states have an obligation to report on the process and workings on the implementation in the first 6 months after the judgment has been delivered. For example, in Romania in exactly 25% of leading pending cases, the Action Plan (AP) is still awaiting. In the case of Moldova that percentage is over twice as big reaching 57%. This means that an AP has not been submitted in 29 out of 52 leading pending cases. It is clear that some states are not abiding by the 6-months-rule, leaving the Committee of Ministers uninformed about the state of affairs, slowing down or even completely abandoning the process of implementation. These critical facts should be apparent and easily accessible so that an intervention from the part of interested NGOs or NHRIs is rendered possible.

To conclude, the approach taken by the Council of Europe and the Committee of Ministers, of presenting the general number of pending cases including leading and repetitive ones is insufficient. Additionally, the data concerning average implementation time or average time since last report per state is not available and only possible via conducting an independent analysis. What is needed is a database with state-by-state information setting out the extent of the problem of non-implementation and non-reportingIt would certainly prove useful for the Council oEurope as a whole, providing insight into states’ individual approaches to the execution of the judgments. Furthermore, such a tool would certainly be of great help to the civil society movement within each country making the organisations and institutions aware of the scale of the problem and enabling them to successfully put pressure on governments pursuing swift and successful implementation. 

Tuesday, 16 June 2020

New Book on Extraterritorial ECHR Application

Conall Mallory of Newcastle University has published Human Rights Imperialists. The Extraterritorial Application of the European Convention of Human Rights with Hart Publishers. To human rights academics, the topic of this book will not be unfamiliar: entire research projects have been based on the issue of extraterritoriality of human rights treaties. And ECHR scholarship has also had its fair share of writing about the issue. What this book adds is a detailed analysis not just of the development of Strasbourg jurisprudence on the issue but also of the position of other actors, specifically domestic courts - the case study here, if one wants to frame it as such, is the practice of British courts and executive authorities. And specifically, it goes beyond explaining the what and dives into the 'why' issue: why did case-law and practice develop as it did? One of the particularly attractive features of this book is its accessible style, and stup really drawing the reader in at the start of each chapter with very concrete examples and questions and thus avoiding a potentially dry narrative on a very technical issue. Recommended! This is the abstract:

'To what extent do a state’s obligations under the European Convention on Human Rights apply beyond its territorial borders? Are soldiers deployed on overseas operations bound by the human rights commitments of their home state? What about other agents, like the police or diplomatic and consular services? If a state’s obligations do apply abroad, are they to be upheld in full or should they be tailored to the situation at hand?

Few topics have posed more of a challenge for the European Court of Human Rights than this issue of the Convention’s extraterritorial application. This book provides a novel understanding on why this is by looking at the behaviour of those principally tasked with interpreting the treaty: the Strasbourg Court, state parties, and national courts. It offers a theory for how these communities operate: what motivates, constrains and ultimately shapes their interpretive practices. Through a detailed analysis of the jurisprudence, with a particular focus on British authorities and judges during and after the Iraq War (2003), the book provides an explanation of how the interpretation of extraterritorial obligations has developed over time and how these obligations are currently understood. Some have argued that it is imperialistic to apply the Convention extraterritorially. If this is the case, the focus of this book is on those ‘imperialists’ who have interpreted European human rights law to extend beyond a state’s borders, as it is with them that any lasting solution to the challenge will be found.' 

The book is both available as hardback and as an E-book.


Thursday, 4 June 2020

Miscellaneous Updates: Webinar Recordings and NGO Guide

Dear readers, two different updates relating to earlier blogposts on here:

First, the recording of the very interesting webinar / public online talk of President Robert Spano, held last week, has now been put online on the iCourts website. A big thanks to the team in Copenhagen for making this available, also for future reference (and all the more so as the livestream was hampering for many viewers, so it recording provides for high-quality, buffering-free watching and listening). Warmly recommended, as Spano addressed a lot of topical aspects of judicial independence and answered questions coming in on Twitter from the audience.

Also mentioned before, last month the European Implementation Network organised a webinar on effective domestic ECHR implementation. This has now also been put online. On that occasion, an EIN Guide for civil society on domestic advocacy for the implementation of Strasbourg Court was also launched. Accordign to its compilers, these are the contents:

'The examples compiled in this guide show that, where NGOs have sought, identified and pursued opportunities for engaging with the authorities, where they have formed alliances with other civil society actors and used the media to drive implementation forward, they have managed to secure important human rights gains. 

We hope that civil society actors in Europe will draw inspiration from the best practices and lessons learned presented in this toolkit. Because the conditions for effective implementation vary from country to country, from time to time and even from case to case, this guide does not provide a blueprint, one-size-fits-all approach to domestic advocacy for judgment implementation. Instead, it is conceived as a ‘menu’ of potential strategies, tools and actions that NGOs could take at the national level to push for the execution of judgments. The readers are encouraged to pick and choose those elements of this guide that are most relevant to them.

This guide is also a ‘living document’. It seeks to spark a wider conversation among civil society about how to use advocacy at the domestic level to push for the implementation of judgments. We therefore warmly invite our readers to send us feedback, and share their own experiences with domestic advocacy for the implementation of Strasbourg Court judgments with us. So please get in touch!' 

Friday, 29 May 2020

First Issue ECHR Law Review

A new academic baby is born, but one with very dedicated and experienced parents: the first issue of the new European Convention on Human Rights Law Review has now been published online (with Brill Publishers). With a number of short musings about the Court and the Convention, the first articles and book reviews, this is well worth a read. This is the table of contents of issue number 1:

* The Conscience of Europe that Landed in Strasbourg: A Circle of Life of the European Court of Human Rights, Kanstantsin Dzehtsiarou and Vassilis P Tzevelekos

* Key Challenges for the ECHR System: Protecting and Empowering Institutions, Human Rights Defenders and Minorities, Eva Brems

* The European Court of Human Rights at Sixty – Challenges and Perspectives, Angelika Nussberger

* Strasbourg’s Integrationist Role, or the Need for Self-restraint?, Ed Bates

* The European Convention on Human Rights as a Tool of European Integration, Christos Rozakis

* Loyalty, Subsidiarity, and Article 18 ECHR: How the ECtHR Deals with Mala Fide Limitations of Rights, Corina Heri

* The European Court of Human Rights and FIFA Current Issues and Potential Challenges, Daniel Rietiker

* Bouyid v Belgium: The ‘Minimum Level of Severity’ and Human Dignity’s Role in Article 3 ECHR, Natasa Mavronicola

* Sexuality & Transsexuality Under the European Convention on Human Rights: A Queer Reading of Human Rights, written by Damian A Gonzalez-Salzberg, Eszter Polgári

* The European Convention on Human Rights as an Instrument of Tort Law, written by Stefan Somers, Zoë Bryanston-Cross

* Behind the Veil: A Critical Analysis of European Veiling Laws, written by Neville Cox, Myriam Hunter-Henin

Congrats to the editors! You can also follow the new journal on twitter (follower are promised to get open access to the first issue, as currently most articles are still behind a paywall).

Tuesday, 26 May 2020

Guest Post on the European Court, Domestic Oversight of COVID-19 Emergency Measures, and Procedural Rationality

It is my pleasure to introduce a guest post commenting a specific aspect of the current COVID-19 pandemic: how the European Court of Human Rights could foster oversight within ECHR state parties by using procedural rationality. It was written by my SIM colleague Kushtrim Istrefi and his co-author Vassilis Tzevelekos. Good food for thought!

A Way for the ECtHR to Foster the Domestic Oversight of Emergency Measures Against the Pandemic: Procedural Rationality’s Special Mission

Dr Vassilis P Tzevelekos, senior lecturer at the University of Liverpool School of Law and Social Justice, and Dr Kushtrim Istrefi, assistant professor with the Netherland Institute of Human Rights (SIM) at Utrecht University

In the wake of the current pandemic, a number of international institutions have stressed the importance of parliamentary and judicial oversight of national emergency policies. For instance, in the COVID-19 toolkit, the Secretary General of the Council of Europe noted that any emergency measures “should comply with the constitution […] and, where applicable, be subjected to review by the Constitutional Court”. The Venice Commission has highlighted the importance of parliamentary oversight and judicial review with respect to declarations and prolongations of states of emergency. In similar terms, the OSCE has called for stronger parliamentary oversight of emergency measures. The UN, in its policy brief on COVID-19 and human rights, underlined parliamentary scrutiny as a good practice and criticised weak domestic oversight of executive measures.

These calls highlight the importance of domestic oversight of emergency measures in the wake of COVID-19. In this blog, we argue that the European Court of Human Rights (ECtHR) has a ‘tool’ of analysis, namely procedural rationality, that allows for closer engagement with domestic oversight. This engagement, in our view, can ensure stronger European supervision of such measures and help to build common standards of domestic oversight in a manner that also takes into account the pluralism that prevails between the Council of Europe member states with respect to emergency measures.   

The importance of domestic oversight of emergency measures  

The international calls for domestic oversight of states of emergency in the wake of COVID-19 are in line with constitutional traditions of checks and balances in liberal democracies, in particular in times of crisis. For example, when discussing the Coronavirus Bill, the UK Parliament recently stated that “robust parliamentary scrutiny […] and judicial oversight are imperative for granting such significant powers to ministers”. The extraordinary nature of emergency measures and their effect on fundamental rights protection make it imperative that effective domestic oversight is in place to ensure that governments are duly controlled and that they lawfully and legitimately exercise any emergency powers at their disposal or those which they have been given exceptionally.

During a public emergency, national courts and parliaments can control whether the executive duly exercises its enhanced powers. National courts have already performed this function with regard to measures against the coronavirus and prevented the executive from applying various unlawful emergency measures. For instance, constitutional courts in Germany, Kosovo and Bosnia and Herzegovina have recently declared specific measures related to COVID-19 unconstitutional. These judicial interventions can serve as examples of the role that human rights can play in times of emergency. Scrutiny by courts can ensure that national policies fighting the pandemic do not become abusive or go beyond what is necessary. Mutatis mutandis, parliamentary oversight can offer democratic legitimacy to emergency measures, control the executive and apply pressure, for instance by inviting governments to re-evaluate whether emergency powers or measures are still required. This way, they can prevent so-called entrenched emergencies. Thorough oversight of national policies against COVID-19 at the domestic level is essential to maintain respect for human rights, to endow these policies with legitimacy and to enhance their effectiveness.

The pertinence of procedural rationality for domestic oversight of emergency measures

Domestic oversight is of significance for the purposes also of the international scrutiny of emergency legislation that interferes with human rights. Domestic parliamentary debates and judicial decisions reveal the goals pursued by emergency measures, the priorities that they set, the values that underpin them, and the risks and trade-offs that they involve. They are also telling of the aptness of the measures, their duration, necessity and legitimacy. These are all elements that the ECtHR can duly consider when reaching a decision on the compatibility of national emergency measures against COVID-19 with the ECHR.

The ECtHR can engage with the practice of national parliaments and national courts through so-called procedural rationality review. According to Popelier and Heyning, when applying procedural rationality analysis, the ECtHR “takes the quality of the decision-making procedure at the legislative, the administrative as well as the judicial stage, as a decisive factor for assessing whether government interference in human rights was proportional, thereby avoiding intense substantive review”. This procedural approach allows the Strasbourg Court to rely on domestic oversight by considering parliamentary debates or the lack thereof, the attempt to weigh competing interests, and the reliance of national courts on the ECtHR’s case law, to name a few factors. As a result, to use the words of Kleinlein, procedural rationality can “increase the ‘ownership’ of European human rights by domestic institutions and the general public and rationalize the debate”. 

The engagement with and the reliance on domestic oversight sends a signal for cross-party politics and the proper weighing of different interests at a time when the power in the hands of a few has the potential to heavily cost the many. This approach, to borrow the words of President Spano, can thus have “democracy enhancing” effects during challenging times. Furthermore, as the Strasbourg Court itself cannot provide a timely review of states of emergency, reliance on domestic oversight helps the ECtHR to take cognizance of larger policy implications when looking at individual applications. Finally, as discussed in further detail below, by means of procedural rationality the Court can set certain standards of domestic oversight that states ought to meet. In this way, as Gerards and Brems argue, the ECtHR can also “impose[…] quality standards upon national legislators and encourage […] national courts to conduct their own procedural rationality review”.

Overall, our argument is that procedural rationality can prove to be particularly helpful in the case of emergency measures. With this type of review, the focus moves from the consequences that emergency measures have for human rights per se to the procedure behind these measures and to the procedural safeguards a polity offers to control these measures. Procedural safeguards thus offer a first layer of defence at the local level and, possibly, in real time, whilst the emergency is still ongoing. Procedural rationality is not merely a matter of procedure. The procedure can complement, underpin and condition the substance of human rights, in particular when these are threatened by extraordinary measures. That being said, it is not surprising that the role of parliaments in states of emergency has already been raised before the ECtHR in the past. In A and others v. UK, the UK Government specifically noted that the contested measure “was not only the product of the judgment of the Government but was also the subject of debate in Parliament”. In that case, when assessing whether derogations of long duration are compatible with the ECHR, the Court also relied upon the fact that such measures had been annually reviewed by the UK parliament (para 178). Admittedly, the weight given by the ECtHR to domestic oversight is not entirely clear in this particular case. In the future, however, the Court can take a stronger procedural turn by way of engaging with the quality of domestic parliamentary and judicial review in more depth.

Procedural rationality and deference to national authorities

Procedural rationality can potentially be a subsidiarity-friendly tool, by means of which the ECtHR - whilst also taking into account other relevant factors - decides when (or the extent to which) it should defer to national decision making and scrutiny. As such, in an eventual application before the ECtHR, elements such as the quality of decision-making processes at the national level, high standards of good governance and the thoroughness of domestic oversight can be decisive in determining the rigidity and completeness of the test of conventionality carried out by the ECtHR.

A process-based review may give the impression that the ECtHR is lowering its standards or that, by granting leeway, it is enfeebling the scrutiny that it traditionally exercises; however, this is not a very safe conclusion to reach. 

First, this largely depends on, inter alia, the intensity of procedural rationality and its outputs. Procedural rationality does not necessarily result in increased leeway being given to national authorities. 

Second, the ECtHR could adopt a “semiprocedural review”, that pairs with substantive review. That is to say, it would not be unreasonable if, particularly in the context of emergency measures, procedural rationality would complement - instead of replacing or mitigating - the traditional test of conventionality. With procedural rationality, the ECtHR could add one extra layer of scrutiny and, alongside other elements such as proportionality, also check the quality and adequacy of domestic oversight in cases involving emergency measures. This extra layer could even be added in a more oblique or concealed way. For instance, procedural rationality analysis could be associated with (or absorbed by) other questions traditionally explored by the ECtHR, such as the legitimacy of the aim pursued by an interference with ECHR rights or the existence within domestic law of a legal basis for the interference. 

Third, even if procedural rationality (applied in light of the particular circumstances of a case) leads to deference through a wide margin of appreciation precluding a full test of proportionality, process-based review can still offer rather satisfactory results. Essentially, it shifts the level where full scrutiny is being exercised. Instead of applying its usual scrutiny, the ECtHR can replace it with a more general review that the requisite scrutiny has been duly exercised domestically. The reason that procedural rationality may result in the granting of a wider margin of appreciation is that the national authorities of the respondent state are considered to have done their job in a manner that in principle complies with the ECHR.

To that end, national authorities must duly consider human rights law and strive to give the ECHR effects that satisfy the ECtHR in that they are close enough to those that it would have given, had it decided to proceed with its traditional full test. The key issue in the case of emergency powers is not so much who (i.e. national authorities or international institutions) exercises oversight, but that this is duly exercised in a timely manner. Mutatis mutandis, without undermining the importance that subsidiarity holds to states, the key issue with the use of procedural rationality with respect to emergency measures is not so much the granting of a margin of appreciation, but the fact that procedural rationality puts the accent on domestic oversight. This is the key reason why we contend that procedural rationality is an apposite method for cases involving emergency measures.

The importance of procedural rationality lies in the emphasis that it places on the quality of oversight procedures at the national level, and also in its possible connection with margin of appreciation, which is essential for both states’ and the ECtHR’s legitimacy. As Lord Atkin once lamented, in times of crisis, the risk remains that courts become “more executive minded than the executive”. With respect to international courts such as the ECtHR, this danger goes hand in hand with another risk, namely, to overly restrict national sovereignty. This can be more problematic when national authorities fight an emergency and, to be in a position to do this in an effective manner, they need more leeway. It is largely accepted that the ‘era of subsidiarity’ within the ECHR regime emerged as a reaction to criticism that the ECtHR has been more interventionist than (certain) states would have desired it to be in the past. By relying on (ergo essentially also controlling the quality of) domestic judicial and parliamentary oversight of emergency measures as a criterion and a precondition to defer to decision making at the local level, the ECtHR does not second-guess but rather cross-checks what the competent domestic actors have decided about emergency measures.

Procedural rationality, pluralism and common minimum standards

Procedural rationality allows the ECtHR to pay due regard to domestic procedures in each case and possibly defer to national authorities. This is particularly important as domestic procedures may well differ from one state to another. Constitutional variety on how oversight of emergency measures should be exercised is a ‘natural’ consequence, and also evidence of (constitutional) pluralism (and wealth) regarding certain aspects of a polity’s reaction to an emergency, including the special procedures, legal bases and logic behind the allocation of competences for adopting emergency measures.

Procedural rationality enables the ECtHR to show - when it deems it necessary - how much it respects different legal traditions and the different paths taken to respond to a crisis. In other words, this method can help the Strasbourg Court to maintain a due balance between the (constitutional) pluralism with respect to extraordinary measures that inevitably prevails within a community of 47 states, on the one hand, and the exigencies of human rights, on the other. The former aspect involves subsidiarity and deference to national authorities. The latter involves ‘smart’ forms of scrutiny, such as procedural rationality that can help to determine whether national procedures meet certain common minimum standards regarding the way in which they should operate. 

These common standards of procedural rationality translate into: a) guarantees of due consideration of the substance of a human rights issues, primarily at the national level and, if need be (i.e. if a state fails the procedural rationality test or if the process-based review of the ECtHR complements substantive review rather than precluding it) to an extent by the ECtHR; b) respect for national sensitivities and special features (i.e. the idiosyncrasy of each national constitutional order in the way it regulates reactions to emergencies); and also c) the gradual building of a common core of minimum procedural standards that each member state ought to meet as a precondition for them to pass the procedural rationality test and possibly ‘gain’ an increased margin of appreciation.

Given that the margin of appreciation that states traditionally enjoy in states of emergency is wider, procedural rationality could act as a precondition for granting margin of appreciation in a way that does not sacrifice the substance of human rights protection, respects legal pluralism, subsidiarity and sovereignty, whilst also emphatically placing the accent on what is essential in times of crises which lead to emergency measures and the granting of extraordinary executive powers. This way, procedural rationality can positively contribute to the strengthening of domestic oversight and supervision and, thereby, to the protection of fundamental human rights by establishing certain ‘red lines’ with respect to domestic procedures pertaining to the oversight of emergency measures or by setting certain ‘goals’ of domestic scrutiny and oversight -which could be met in a ‘flexible’ manner, adjusted to the constitutional physiognomy of each member state. Finally, we must stress that domestic oversight during states of emergency and its use by the Strasbourg Court through procedural rationality is not a magic tool to mitigate or tolerate instances of misapplication or misuse of executive power in a state of emergency.

Conclusion

The use of procedural rationality is not without criticism. Some could argue that it is a form of judicial activism or that the Court lacks the authority to scrutinise the quality of parliamentary debates. Given its confines, the purpose of this blog is not to argue in favour or against procedural rationality in general, but to underscore the pertinence of procedural rationality with respect to emergency measures. The primary advantage of the use of this method in the context of emergency measures is that procedural rationality focuses on what is essential for such measures, i.e. the quality and depth of domestic oversight, guaranteeing that the emergency measures are taken with appropriate deliberation, control and reflection, inter alia as to their compatibility with the rights enshrined in the ECHR. 

By employing the procedural rationality analytical tool, the ECtHR can place the accent on timely domestic oversight as a crisis/situation calling for emergency measures unravels. The ECtHR’s case law can thereby contribute to the establishment of a common threshold, that is, common minimum standards regarding due oversight of national emergency measures. 

Our view is that by means of procedural rationality, the ECtHR can contribute to the strengthening of domestic oversight of extraordinary measures. It can infuse international scrutiny with democratic legitimacy stemming from the national level, whilst also giving shape to a common pan-European core of checks and balances in times of emergency in a manner that can, in principle, be subsidiarity-friendly and respectful of (constitutional) pluralism within the 47 Council of Europe member states. To borrow the EU motto, procedural rationality can thus help the member states of the Council of Europe to become more “united in diversity” in times of emergency.

The authors are thankful to Professor Janneke Gerards, Dr Dimitrios Kagiaros and Dr Nikos Vogiatzis for their helpful comments.