ECHR BLOG

Video on Admissibility Criteria

2012-01-30T10:24:00.003+02:00

In its continuing quest to better inform citizens of the possibilities and limits of the European human rights protection system, the Court has launched yet a new tool: a short youtube movie which in about three minutes - and with the generous support of the Principality of Monaco, not the state that causes the Court the biggest caseload troubles! - shows what the main admissibility criteria are. Another creative tool!

For the French version, see here.

The Court's Annual Report 2011

2012-01-27T17:13:00.006+02:00

Today, at the opening of the judicial year in Strasbourg, the Annual Report and an overview of facts and figures for 2011 were presented. This includes a table of violations (by country). It reveals that the top five of countries against which judgments were issued are: Turkey (174 judgments), Russia (133), Ukraine (105), Greece (73) and Romania (68). If there would not only be credit ratings for countries, but also judicial ratings, these numbers would be a good starting point, especially considering that most of the violations found relate to unfair trials, overly lengthy judicial proceedings and lack of effective remedies (Articles 6 and 13 ECHR).

Very helpfully, the Annual Report includes an overview of the main judgments and decisions of 2011 - for anyone who spent a year in splendid isolation or for those who want to get a quick update on the Court's work. This also shows the productivity of the Court: slightly less judgments and more decisions. As the report states:

In 2011 the Court delivered a total of 1,157 judgments, compared with 1,499 judgments delivered in 2010. In fact, in 2011 a greater number of applications were resolved by a decision. 875 judgments were delivered by Chambers and 269 by Committees of three judges. 13 judgments on the merits were delivered by the Grand
Chamber. 1,860 applications were declared inadmissible or struck out of the list by Chambers.

In 2011, 46.6% of all judgments delivered by a Chamber were categorised as being of high or medium importance in the Court’s caselaw database (HUDOC)2. All Grand Chamber judgments are of highlevel importance in HUDOC. In 2011, those judgments classed as importance level 1 or 2 represented 36.39% of all judgments delivered
during the year, a slight increase when compared with the figure of 32.5% from the previous year. As to the rest, 736 judgments concerned so-called “repetitive” cases with a low level of importance (level 3).

The majority of decisions published in 2011 in the Court’s case-law database concerned so-called “repetitive” cases.

In the press conference yesterday, the president of the European Court, Sir Nicolas Bratza, noted the successes - amongst others an increase of 30% of applications disposed of under the Single Judge filtering mechanism since the implementation of Protocol 14 - but also issued two cautionary notes. One on the position of human rights in general:

Human rights, the rule of law and justice seem to be slipping down the political agenda in the current economic climate. It is in times like these that we must remember that human rights are not a luxury and that the burden of their protection must be a shared one. We must continue to ensure that the Court remains strong, independent and courageous in its defence of the European Convention on Human Rights. But, of equal importance is the fact that the Court should be able to assume the supervisory role for which it was designed. This it can only do with the help of the 47 European governments which have ratified the Convention.

And one on the atttitude of state parties towards the Court:

Its independence and authority should not be undermined and that criticism by governments, even where legitimate, should rely on reasoned argument rather than emotion and exaggeration.

See also the reporting in the Guardian in the overview article 'European Court of Human Rights: which countries get the most judgments?'.

Once in a Generation?

2012-01-26T10:14:00.005+02:00

Yesterday, Prime Minister David Cameron of the United Kingdom - which is currently chairing the UK - addressed the Parliamentary Assembly of the Council of Europe. The main part of the speech concerned the European Court of Human Rights. Cameron packed his by now well-known cricitisms about the Court in praise, calling it "a beacon for the cause of human rights, ruthlessly focussed on defending human freedom and dignity, respected across the continent and the world." The Court should, in his view, not turn into a court of fourth instance nor be an immigration tribunal nor meddle to much with national affairs. In a telling paradox, Cameron said:

And we are hoping to get consensus on strengthening subsidiarity – the principle that where possible, final decisions should be made nationally. It is of course correct that the Court should hold governments to account when they fail to protect human rights. In these instances it is right for the Court to intervene.

The whole speech comes across as a mixture of praise and warnings, the latter ones all too familiar to anyone who has been following the debates in the United Kingdom on the Court. Concrete proposals for new reforms will follow in the course of the UK Chairmanship.

A day ahead of the speech, the Court's President, Sir Nicholas Bratza, already 'pre-acted' to Cameron's statements through an article in the Independent newspaper, entitled 'Britain should be defending European justice, not attacking it'. Bratza argues that many of the UK criticisms are based on misunderstandings on the role of the Court. On the Court's alleged encroaching upon sovereignty, Bratza puts matters into perspective:

The criticism relating to interference is simply not borne out by the facts. The Strasbourg Court has been particularly respectful of decisions emanating from courts in the UK since the coming into effect of the Human Rights Act, and this because of the very high quality of those judgments. To take 2011 as the most recent example: of the 955 applications against the UK decided, the Court found a violation of the Convention in just eight cases.

For more press coverage, see here (BBC) and here (The Guardian). These also refer to opposition and NGO reactions to Cameron's speech.

Cameron talked about "the once-in-a-generation chance we have, together, to improve the way we enhance the cause of human rights, freedom and dignity." His remarks and criticisms do not come as a surprise and it certainly is not the first time in a generation we have heard him say it nor probably the last time ...

PACE Resolution on Authority and Effectiveness of ECHR

2012-01-25T10:18:00.003+02:00

Yesterday, the Parliamentary Assembly of the Council of Europe (PACE) adopted the report 'Guaranteeing the authority and effectiveness of the European Convention on Human Rights', on which I earlier blogged here in November. The accompanying resolution (No. 1856) calls, as by tradition one can almost say, for enhanced national (parliamentary) oversight. I reproduce it here in full:

1. The Parliamentary Assembly pays tribute to the extraordinary contribution that the European Court of Human Rights (“the Court”) has made to the protection of human rights in Europe. In so doing, it recognises the subsidiary nature of the supervisory mechanism established by the European Convention on Human Rights (ETS No. 5, “the Convention”), notably the fundamental role which national authorities, namely governments, courts and parliaments, must play in guaranteeing and protecting human rights.

2. The Assembly reiterates that the right of individual application, which lies at the heart of the Convention machinery, has to be preserved in essence, and that the Court must be in a position to dispose of applications within a reasonable time, while maintaining the quality and authority of its judgments. It follows that priority must be given to difficulties encountered in states which do not appropriately implement Convention standards. Therefore, the Court should be encouraged to continue to prioritise cases in line with its recently adopted policy.

3. From this, it transpires that, in order to ensure the long-term effectiveness of the Convention system, there is a need to strengthen and enhance the authority of Convention rights at the national level (including the res interpretata authority of the Court’s case law), to improve the effectiveness of domestic remedies in states with major structural problems, and to ensure rapid and effective implementation of the judgments of the Court. National parliaments can play a key role in stemming the flood of applications submerging the Court by, for instance, carefully examining whether (draft) legislation is compatible with Convention requirements and by ensuring that states promptly and fully comply with the Court’s judgments.

4. In this connection, the Assembly reiterates its call for parliaments to establish appropriate internal structures to ensure rigorous and regular monitoring of states' compliance with international human rights obligations (Resolution 1823 (2011) “National parliaments: guarantors of human rights in Europe”) and, in particular, effective parliamentary oversight of the implementation of the Court’s judgments (Resolution 1516 (2006) on the implementation of judgments of the European Court of Human Rights, paragraph 22.1).

5. As the post-Interlaken debate on the future of the Convention system does not sufficiently take into account the role of parliaments (Resolution 1823 (2011), paragraph 5.2), the Assembly, as well as national parliaments, must ensure that they are provided with an opportunity to scrutinise reports which member states have been required to submit to the Committee of Ministers on national implementation of relevant parts of the Interlaken and Izmir Declarations.

6. Finally, the authority and effectiveness of the Convention system are contingent on the political will and commitment of member states to provide the Organisation with the appropriate financial means to implement its human rights mandate. The difficult budgetary predicament in which the Council of Europe finds itself must be given urgent attention in member states, especially the legislative branches of state authority, given the latter’s decisive role in the determination of state budgetary appropriations.

And More New ECHR Publications

2012-01-19T12:12:00.005+02:00

And yet another batch of new ECHR-related books and articles. The first is a book on freedom of expression and minorities, written by colleague and friend Tarlach McGonagle of the University of Amsterdam. Its entitled 'Minority Rights, Freedom of Expression and of the Media: Dynamics and Dilemmas' and was published with Intersentia. Congratulations, Tarlach! This is the abstract:

This book offers a rigorous, theory-based, and uniquely comprehensive, analysis of European and international legal standards shaping minorities’ right to freedom of expression. The analysis pays particular attention to the instrumental role played by traditional and new forms of media in ensuring that the right to freedom of expression of persons belonging to minorities is effective in practice.

The relevant international legal framework is set out in detail, including a careful examination of the relationship between generalist and minority-specific international human rights instruments. Due attention is paid to the historical circumstances in which key instruments were developed and the contemporary context in which they are now being interpreted. The analysis is also informed by an awareness of institutional and political dynamics. All of this forms the basis for the book’s central objective: to mount a critical evaluation of the existing international legal framework governing freedom of expression for minorities, while drawing on theoretical insights gained from human rights scholarship and communications science.

The first major focus of the evaluation is the regulation and restriction of expression to protect minority rights, in which issues such as pluralism, tolerance and “hate speech” feature centrally. Its second major focus, the regulation and facilitation of expression to promote minority rights, explores cultural and linguistic rights and media access questions.

The book provides detailed analysis of the European Court of Human Rights’ case-law on each of these themes.

The second is a publication on SSRN relating to the convictions of Khodorkovsky and Lebedev in Russia, dealing with the ECHR aspects of those cases. It was authored by Jeffrey Kahn of Southern Methodist University. This is the abstract:

This report resulted from an invitation received on April 1, 2011 from the Presidential Council of the Russian Federation for the Development of Civil Society and Human Rights "to participate in an independent public expert analysis of official documents and proceedings in the recent criminal case concerning M.B. Khodorkovsky and P.L. Lebedev, who were convicted by a judgment announced on December 27, 2010." The report was submitted to the Council on October 1, 2011. It was the only report submitted from the United States, the other reports having been sought and received from scholars in Russia, Germany, and the Netherlands.

On December 21, 2011, the Council released this report in Russian along with the reports of the other scholars. On the basis of these reports, the Council recommended that legal proceedings begin to annul the convictions.

This report evaluates the verdict in the case for compliance with Russia's obligations under the European Convention on Human Rights. The report concludes that the verdict in this case reveals violations of the defendants' human rights protected under Articles 3, 6 and 7 of the Convention and that other Convention rights also may have been violated.

Finally, the 2010(!) edition of the Italian Yearbook of International Law has now been published. It is focused on the future of the ECHR system. These are the contributions:

◦Giuseppe Cataldi, Presentation of the Symposium

◦The ECHR System and International Law
◦Raffaella Nigro, The Notion of “Jurisdiction” in Article 1: Future Scenarios for the Extra-Territorial Application of the European Convention on Human Rights
◦Ottavio Quirico, Substantive and Procedural Issues Raised by the Accession of the EU to the ECHR
◦Beatrice I. Bonafè, The ECHR and the Immunities Provided by International Law

◦Comments
◦Pasquale De Sena, The Notion of “Contracting Parties’ Jurisdiction” Under Article 1 of the ECHR: Some Marginal Remarks on Nigro’s Paper
◦Benedetto Conforti, Comments on the Accession of the European Union to the ECHR
◦Emilio De Capitani, EU Accession to the ECHR: A Parliamentary Perspective
◦Marco Gestri, Access to a Court and Jurisdictional Immunities of States: What Scope for the Balancing of Interests Test?

◦General Aspects of the Functioning of the ECHR System
◦Antonio Bultrini, The European Convention on Human Rights and the Rule of Prior Exhaustion of Domestic Remedies in International Law
◦Simona Granata, Manifest Ill-Foundedness and Absence of a Significant Disadvantage as Inadmissibility Criteria of Inadmissibility for the Individual Application to the Court
◦Andrea Caligiuri & Nicola Napoletano, The Application of the ECHR in the Domestic Systems

◦Comments
◦Guido Raimondi, Reflections on the Rule of Prior Exhaustion of Domestic Remedies in the Jurisprudence of the European Court of Human Rights
◦Françoise Tulkens, The Link Between Manifest Ill-Foundedness and Absence of a Significant Disadvantage as Inadmissibility Criteria for Individual Applications
◦Pasquale Pirrone, The Value of the Judgments of the European Court of Human Rights for the Courts of the Respondent State: Domestic Judicial Decision in Favour of the Applicant and the Principle of “Doing as Much as Possible”

◦General Conclusion on the Symposium
◦Jean-Paul Costa, Concluding Remarks on the Future of the Strasbourg Court

Report Wilton Park on Future of European Court

2012-01-18T11:40:00.002+02:00

Last November, a big conference was held at Wilton Park in the United Kingdom. It was an international informal discussion meeting between national judges and parliamentarians, state representatives, Council of Europe and Court offocials and civil society experts on discussing the future of the European Court of Human Rights. The report of the meeting is entitled '2020 Vision for the European Court of Human Rights'. According to the organisers, key issues discussed included the following:

* Challenges currently facing the Convention system, including the Court’s workload and the backlog of pending applications, systemic violations and the role of the Court, the resources available to the Court, the relationship of the Court to national parliaments and national legal systems, public perceptions of the Court and the need for greater political will on the part of governments to secure the rights and freedoms of the Convention;

* Ways of addressing the present and likely future demands made on the Court, including building on the reforms introduced in recent years, strengthening national implementation of the Convention, in particular the execution of judgments, and how best to drive forward the urgent need for reform, reaching a balance between incoming cases and judgments, on a manageable level, and lower than that of today, in a reasonable time without weakening the human rights protection the Convention affords.

New Working Paper on Margin of Appreciation

2012-01-17T13:12:00.003+02:00

Paul Gallagher, associated to the University College Dublin, has posted a working paper on the Court and the margin of appreciation on SSRN. It's entitled 'The European Convention on Human Rights and the Margin of Appreciation'. This is the abstract:

The debate as to whether courts are too eager, or not eager enough, in holding that government regulations violate individuals’ fundamental rights has raged across decades and across jurisdictions. The underlying considerations are particularly acute when the courts concerned are supranational courts – and thus further removed than national judges from the societies affected by their judgments. The European Court of Human Rights has grappled with this issue by developing the concept of a margin of appreciation and thereby according to Contracting States an element of judgment in securing the rights enshrined in the Convention. The margin of appreciation has been central to the jurisprudence of the Court and is of major importance to the Contracting States. It has assumed even more significance as the Court through its case law has expanded Convention rights. This paper focuses on the use by the Court of the concept of a margin of appreciation and considers, in particular, whether the use of that concept provides a sufficient safeguard against what some people see as an overactive court which has interpreted the Convention in a manner that the original Contracting States could never have envisaged.

Articles in EHRLR

2012-01-16T13:15:00.003+02:00

Three issues of the European Human Rights Law Review of 2011 (on which issues I did not yet report) include a number of articles on the European Convention on Human Rights. Here is an overview. In issue 3:

* Sophie Briant, Dialogue, diplomacy and defiance: prisoners' voting rights at home and in Strasbourg.

In issue 4:

* Maria Suchkova, An analysis of the institutional arrangements within the Council of Europe and within certain Member States for securing the enforcement of judgments

In issue 5:

* Baroness Hale, Common Law and Convention Law: The Limits to Interpretation.

* David Mead, "Don't make us get a warrant... we only want a quick look in your husband's shed": The Article 8 Issues Raised by the Domestic Legal Framework on Police Entries and Searches by Consent.

* Max Schaefer, Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction.

The latter issue also includes an article by the Court's president Sir Nicholas Bratza, noted here earlier.

Blog on ECHR and Poland

2012-01-13T16:27:00.002+02:00

The ever-expanding blogosphere, specifically the one on human rights, has a new offshoot: Etpcz Blog, a blog on the European Convention on Human Rights in Polish. The blog was created two months ago by Robert Rybski of Warsaw University. Its aim is to cover Polish aspects of the ECHR for a Polish audience and in doing so making the Court's case-law more accessible to Polish practioners. Congratulations, Robert, and keep up the good work!

New Academic ECHR Publications

2012-01-11T10:32:00.002+02:00

At the start of the new year a very wide range of articles and publications on the European Convention and the European Court (see the overview below). A very good year to all readers!

* Yonatan Lupu and Erik Voeten, 'Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights', British Journal of Political Science (December 2011).

Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince ‘lower’ (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways.

* Maria Zhurnalova-Juppunov, 'Religious Displays at Public Schools – Courts, Crucifixes and Masters of Identities', Maastricht Journal of European and Comparative Law, Volume 18.

Abstract: This contribution compares the judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in the case of Lautsi v. Italy with the decision of the German Federal Constitutional Court in the Classroom Crucifix case. An examination of the way that the courts dealt with the common issues of state neutrality in education, parents’ rights to direct the religious education of their children, students’ right to religious freedom, as well as of the consistency of the rulings with relevant case law, reveals that the ECtHR’s Grand Chamber rendered a judgment open to criticism on a number of grounds. It erroneously conflated state action interfering with the applicant’s rights with the exercise of some ‘collective’ rights and liberties. The mis-characterization of the crucifix as a ‘passive symbol’ led the ECtHR to trivialize or disregard the effects of the crucifix on dissenting students and the state neutrality mandate in public education. Finally the judgment is not consistent with the relevant case law of the Court and the application of the doctrine of the margin of appreciation has served to weaken its role as Europe’s ‘ fundamental rights protector’, seeming to be a means through which the Court has gracefully given in to ‘popular sentiment’. The contribution concludes by offering a ‘pluralist approach’ as a legislative framework for regulating the display of religious symbols in public schools

* Paul Johnson, 'Heteronormativity and the European Court of Human Rights', Law and Critique (January 2012).

This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.

New Book on Court After Protocol 14

2012-01-09T09:24:00.003+02:00

Last year in May, the University of Fribourg organised a conference on the European Court's future after Protocol 14. The conference book, edited by Samantha Besson, is out now and is entitled 'La Cour européenne des droits de l'homme après le Protocole 14 / The European Court of Human Rights after Protocol 14'. It includes contributions by Luzius Wildhaber, Helen Keller, Philip Leach, Elisabeth Lambert Abdelgawad and many others. This is the abstract:

After many years of uncertainty, Protocol 14 to the European Convention on Human Rights finally entered into force on 1st June, 2010. It brings about some important and well-known amendments to the European Court of Human Rights’ functioning. Those reforms should help the Court deal with some of the serious difficulties and backlog it has been facing to date. The Protocol also generates its own set of new difficulties, however, as many procedural and substantive issues were not settled by the updated version of the Rules of court and will have to be addressed in practice.

Moreover, as foreseen by certain specialists, many other fundamental reforms are needed to make the Court more effective and a Protocol 15 is allegedly already under consideration. The present publication has two aims. It aims, first of all, at developing a general assessment of the main improvements to the Court’s functioning one year after the entry into force of the Protocol, but also at identifying some issues where further reforms are needed. A second aim is to examine the Declaration and Action Plan that was adopted on 19th February, 2010 at the Interlaken Conference on the Future of the European Court of Human Rights and under the Swiss Chairmanship of the Council of Europe. Different measures listed in the Action Plan are discussed and suggestions made as to how to best implement them.

Christmas Break

2011-12-23T10:48:00.004+02:00

The end of the year is approaching. 2011 was a very eventful year for the European Court of Human Rights. Apart from issuing important case-law, it has also come under intense criticism in some state parties and new reforms to increase its efficiency are again on the table. On a positive note, the backlog in the workload seems in the last few months, according to insiders, for the first time to be slightly decreasing. Let us hope that trend will continue in the new year so that finally the waiting times for applicants will start to decrease in stead of increase. More importantly even, let's also hope that state parties will finally take their part of the subsidiarity principle more seriously, by more effectively protecting human rights close to home, at the national level.

This blog has meanwhile continued to grow, due especially to the support of many readers who provide me with ECHR-related news, events and academic articles. This year, the blog reached over 150,000 pageviews from 178 countries! Please continue to send me your information, views and suggestions for guest posts on case-law - this blog is in many ways, like the Convention, a living instrument! Many thanks to all.

I will be back with new posts in January. I wish all the readers of this blog happy holidays. May 2012 be a healthy and good year for all of you!

Research Reports of the Court

2011-12-20T10:29:00.008+02:00

In the course of this year, the registry of the European Court of Human Rights has published a number of so-called 'research reports' online. In the form of succinct handbooks they provide analytical information on the Court's case-law on a (sofar) restricted number of themes:

* Internet: case-law of the Court
* Child sexual abuse and child pornography in the Court's case-law
* Use of Council of Europe treaties in the case-law of the Court
* The role of the public prosecutor
* The freedom of religion (in French)
* Cultural rights

A very useful starting point for researchers and for possible litigants.

New ZaöRV Articles on ECHR

2011-12-19T10:15:00.002+02:00

The newest issue of the Zeitschrift for ausländisches öffentliches Recht und Völkerrecht, also known as the Heidelberg Journal of International Law (vol. 74, no. 4, 2012) has just been published. It includes two articles relating to the European Convention on Human Rights:

* Matthias Klatt, 'Positive Obligations under the European Convention of Human Rights'

* Sina van den Bogaert, 'Roma Segregation in Education. Direct or Indirect Discrimination?'

Abstracts are not available.

Lord Irvine's Take on the ECHR

2011-12-16T18:34:00.003+02:00

Last Wednesday, Lord Irvine of Lairg, the 'architect' of the Human Rights Act, delivered a lecture at the Bingham Centre for the Rule of Law adding to the discussion on the ECHR in the United Kingdom. The lecture is entitled 'A British Interpretation of Convention Rights'. As Lord Irvine stated at the start of his lecture, he aimed:

(a) to ensure that the Supreme Court develops the jurisdiction under the HRA that
Parliament intended;
(b) that, in so doing, it should have considered and respectful regard for decisions of the ECHR, but neither be bound nor hamstrung by that case-law in determining Convention rights domestically;
(c) that, ultimately, it should decide the cases before it for itself;
(d) that if, in so doing, it departs from a decision or body of jurisprudence of the ECHR it should do so on the basis that the resolution of the resultant conflict must take effect at State, not judicial, level; and
(e) by so proceeding, enhance public respect for our British HRA and the development and protection of human rights by our own Courts in Britain.

Bound to raise more discussion!

ECHR Implementation in Central and Eastern Europe

2011-12-13T16:08:00.004+02:00

Frank Emmert, of the School of Law of Indiana University, has posted the findings of an upcoming book ('The European Convention on Human Rights and Fundamental Freedoms in Central and Eastern Europe', Eleven International Publishing, 2012) on SSRN in a paper entitled 'The Implementation of the European Convention on Human Rights and Fundamental Freedoms in New Member States of the Council of Europe - Conclusions Drawn and Lessons Learned', which signals the great amount of work still to be done on ECHR implementation. This is the abstract:

In the book, some 25 authors report on the implementation of the ECHR in their respective countries, including questions of ratification and implementation in law, awareness by legal professionals, inclusion in the curricula of law schools, practice of the courts, cases brought to Strasbourg, and execution of judgments of the EuCrtHR on the domestic level. The Conclusions summarize the findings and make recommendations for better implementation of the ECHR by better protection of fundamental rights and freedoms, more effective national remedies, and pro-active changes of laws, institutions, and procedures, after judgments against other Member States of the Council of Europe.

Op-Ed on European Court

2011-12-12T11:50:00.002+02:00

Emma Bonino (member of the Italian Senate and former European commissioner) and James Goldston (executive director of Open Society Justice Initiative) have added their voices to the debate about the European Court of Human Rights. In an Op-Ed published in the online journal European Voice they plead for an independent and strong Court. Here is the first paragraph of the text - the rest can be found on the website of the European Voice:

The UK has yet to put forward firm proposals, but the coalition government has indicated it is considering, among others, steps to give the court more control over its overwhelming docket. This UK government is not the most likely champion of the ECHR: David Cameron, the prime minister, has made it clear he thinks the ECHR has overreached itself, most famously in a 2005 ruling against a blanket British ban on prisoners' voting, which the UK has yet to implement. But what is more important than the specifics presented by the UK is the broader impetus behind the proposals, which would in any case require the approval of all 47 member states. This push to reduce the Court's caseload, and other problems, may determine whether the Strasbourg Court lives or dies.

Paper on National Judicial Treatment of the ECHR

2011-12-08T12:42:00.002+02:00

Giuseppe Martinico, of the Centro de Estudios Politicos y Constitucionales in Madrid and the European University Institute in Florence, has posted a paper on the differences and similarities between EU and ECHR law in national legal orders. It is entitled 'The National Judicial Treatment of European Laws: Are National Judges Extending Primacy and Direct Effect to the ECHR?'. This is the abstract:

The aim of this study is to answer the question: “Are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights”? This paper investigates the similarities and differences between the national judicial treatment of the ECHR and EU laws in the context of some selected constitutional experiences. It examines whether or not national judges treat the ECHR and EU law in the same manner, and the extent to which they facilitate the convergence of these laws. In this respect the goal of the project is to study the judicial application of the ECHR and EU law to analyse the vertical relationship between the national judges (both constitutional and ordinary judges) and these forms of external laws. As such, I am not interested in the horizontal convergence between the European Court of Human Rights and the European Court of Justice (ECJ). Rather, my investigation is limited to the vertical dimension of convergence. Obviously these two dynamics are strongly related and both European courts have undergone deep transformations in the last few years, especially after the enlargements of the EU and the Council of Europe.

Important Housing Rights Judgment

2011-12-07T13:01:00.004+02:00

What to do when one buys a house or an apartment in good faith, but it later on expires that the original owner had acquired it by fraud? To what extent should the interests of the new bona fide owner then be protected? These questions arose in the case of Gladysheva v Russia in which the Court rendered judgment this week. Svetlana Gladysheva bought an apartment in moscow from an earlier owner. That person had, in turn bought it from a certain Ms Ye, who had bought the (formerly social housing) apartment from the state under a privatisation scheme. Several years later, the authorities found that Ms Ye had bought the flat through fraud and as a consequence they declared that the flat had therefore illegally been removed from the city of Moscow's possession. Although they acknowledged that Gladysheva had bought the apartment in good faith, they revoked her title to the flat and even issued an eviction order.

In Strasbourg ,the applicant complained that the revocation of the title to the apartment was contrary to Article 1 Protocol 1 (P1-1, protection of possessions) and that the eviction order violated article 8 (respect for the home. In its judgment, the European Court of Human Rights indeed found two violations of the ECHR.

As to P1-1, the Court noted that the revoking of the applicant's title was disproportionate. Specifically, the fact that the fraud was only discovered years later was completely due to the authorities themselves. It was not for the applicant, the Court assessed, to (para. 79) "assume the risk of ownership being revoked on account of defects which should have been eliminated in procedures specially designed to do so. The authorities’ oversight could not justify subsequent retribution against a bona fide buyer of the property in question." Moreover, no compensation whatsoever nor any prospect of alternative housing had been offered. The Court concluded that the state should have born the consequnces of its own mistakes and should not have put them on the shoulders of an individual citizen - this constituted an excessive burden.

As to Article 8 ECHR, the Court focused on the eviction order, which in itself amounted to an interference with Article 8 even though it had not been carried out yet (this follows from earlier case-law). The legitimate aim - protecting the rights of people on waiting lists for social housing - was accepted by the Court as a legitimate one. However, automatically ordering an eviction after the ownership rights had been taken away, without taking Ms Gladysheva's interests into account at all, violated Article 8. No proportionality assessment was made, no other individualised interest which would outweigh the applicant's attachment to the flat were shown, and no alternative housing or shelter had been offered.

The Court also ordered a specific form of reparation in this case> Under Article 41 ECHR (just satisfaction) it held that the most appropriate way of redressing the violations - specifically because no countervailing third-party individual interest was at stake - was to simply restore the title of ownership to Ms Gladysheva and to reverse the eviction order. This comes on top of the 9,000 euros which Russia has to pay the applicant for non-pecuniary damages. In the part of the judgement on just satisfaction, the Court re-emphasizes specifically the "central importance of the right to home [sic!] in the Convention hierarchy of rights" (para. 105). Housing issues in relation to Article 8 are of central importance for someone's "settled and secure place in the community" (para. 93).

This judgment sends a clear signal that national authorities should take housing rights, specifically the protection of the home, seriously. Under the ECHR, this is more than a simple property issue - respect for the home also has important social and other connotations which strengthen the protective umbrella of the ECHR (the issue of attachment to a home counts) in such cases. Individual interests based on this should always be taken into account by states when interfering with housing rights. To put it differently, human rights start at home!

Immunity of Judges in Practice

2011-12-05T11:51:00.004+02:00

The question of the immunity of judges arose in Strasbourg in the past two months in the context of a search of the Romanian house of judge Corneliu Bîrsan, one of the Court's longest-serving judges (since 1998). The direct reason was that the wife of judge Bîrsan, a judge serving in Romania's highest appeal court, is being investigated for corruption, on the suspicion of accepting bribes (jewellery and travels). When the couple's home was searched in Romania, this raised problems with regard to immunity of judges of the European Court of Human Rights. On 10 October the President of the European Court issued a statement in which he indicated that immunities of Strasbourg judges in principle also cover their spouses (under the Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe and Article 51 of the European Convention on Human Rights) and showed his concern that Romania had not requested a waiver of immunity. As the press release states:

"in carrying out a search in the home of the Romanian judge as part of an inquiry concerning allegations about his wife the rules on immunity may not have been respected. The Court has requested the Romanian Government to indicate whether they have grounds for asking the Court to waive the judge’s immunity. Under the terms of Article 4 of the Sixth Protocol only the plenary Court is empowered to waive a judge’s immunity."

This wake-up call led to a Romanian reaction only after a few weeks. On 16 November Romania asked for such a waiver. Within a week, the plenary Court decided to allow a waiver of imunity for judge Bîrsan's wife but not for himself and only to the extent "strictly necessary for the investigation". It added that this waiver has no retroactive effect. The earlier search is thus in principle still contrary to the Protocol on privileges and immunities. As to the political side of the matter, Romania is currently being monitored by the European Commission as part of post-accession mechanisms of the European Union. One of the main points of concern is the extent to which the country is serious about its fight against corruption. Even this battle itself, however, will have to comply with the rule of law.

See also coverage by the EU Observer here and here.

Admissibility Checklist

2011-12-02T14:58:00.003+02:00

Today, the Court launched yet another tool to make sure no clearly inadmissible applications are lodged in Strasbourg: an admissibility checklist. Whereas previous efforts were focused to a large extent on lawyers, this new initiative is aimed at the applicants themselves. In the Court's own words, with caveats well-known to anyone trained in law:

The Court is today publishing an on-line admissibility checklist which is designed to help potential applicants work out for themselves whether there may be obstacles to their complaints being examined by the Court. The checklist has been developed against the background of the continuing massive inflow of inadmissible applications which represent a heavy burden for the Court and its Registry and contribute to preventing well-founded cases from being decided in a timely fashion. The checklist is purely indicative and has no legal force. Nevertheless it is hoped that it may serve to save applicants the time and frustration which pursuing an inadmissible application entails.

One may note that before one gets to the actual checklist a page with number about the high numbers of inadmissible cases appears, an implicit dissuasive tool or just a factual warning?

More New ECHR Academic Publications

2011-11-30T10:21:00.004+02:00

And yet another batch of academic works about the European Convention on Human Rights - it would take many metres of bookshelves a year to stack them all!. Thankfully, an increasing part of it is available online:

* Alexandra Timmer, 'Toward an Anti-Stereotyping Approach for the European Court of Human Rights, Human Rights Law Review (Vol. 11, no. 4, 2011).

* Cedric Ryngaert, 'The European Court of Human Rights’ Approach to the Responsibility of Member States in Connection with Acts of International Organizations', International & Comparative Law Quarterly (Vol. 60, no. 4, 2011).

* C. Popa, 'The guarantee of the person's right to liberty and security before the national courts and the European Court of Human Rights, referring to the reasonable term of the procedures', Acta Universitatis Lucian Blaga (no. 1, 2010), pp. 273-280).

* G. Blower and C. Kelly, 'Thematic analysis: criminal law, evidence and the European Court of Human Rights', Cambridge Student Law Review (vol. 7, no. 2, 2011) pp. 38-41.

* N. Croquet, 'The European Court of Human Rights' norm-creation and norm-limiting processes: resolving a normative tension', Columbia Journal of European Law (vol. 17, no. 2, 2010/2011), pp. 307-374.

* D. Regan, '"European consensus": a worthy endeavour for the European Court of Human Rights?', Trinity College Law Review (vol. 14, no. 1, 2011), pp. 51-76.

And finally, the Emory International Law Review (vol. 25, no. 1, 2011) includes two articles on the ECHR:

* A. Pin, 'Public schools, the Italian crucifix, and the European Court of Human Rights: the Italian separation of church and state', pp. 95-150.
* J. Cornwall, 'It was the first strike of bloggers ever: an examination of Article 10 of the European Convention on Human Rights as Italian bloggers take a stand against the Alfano Decree', p. 499-538.

New Version of CoE Human Rights Education for Legal Professionals Website

2011-11-29T09:55:00.003+02:00

Yesterday, a revamped and improved version of the Council of Europe's HELP site, short for Human Rights Education for Legal Professionals, was put online. The HELP programme is an often overlooked but essential nexus between the Strasbourg system and national legal practitioners. As the website of the programme phrases it:

The HELP Programme assists national training institutions in developing their curricula for initial and continuous training, updating the HELP website, developing ECHR courses, modules and methodologies, organising pilot E-learning training courses and reinforcing the capacity of national ECHR trainers. It builds on already existing structures and training courses, inter alia by providing and enhancing possibilities for co-operation and the exchange of information among beneficiary countries.

The project already includes the national training institutions for judges and prosecutors of 13 Council of Europe member states: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Georgia, Moldova, Montenegro, Russian Federation, Serbia, The former Yugoslav Republic of Macedonia, Turkey and Ukraine.

The websites includes announcements on national training events and links to relevant blogs.

New Publications on ECHR and Good News

2011-11-28T10:22:00.006+02:00

The end of this month brings a broad range of new ECHR-related publications, both books and articles. Please find an overview here:

* Nicolas Bratza (current president of the Court) has published an article entitled 'The relationship between the UK Courts and Strasbourg' in the European Human Rights Law Review (2011, No. 5, pp. 505-512).

The Human Rights Law Journal (vol. 30. No. 1-12, a bit older, but I had not mentioned it before I think) includes, apart from a number of case reports, three articles on the ECHR:

* Michael O'Boyle, 'Electoral Disputes and the ECHR: An Overview'
* Jörg Polakiewicz, 'European Union Action on Procedural Rights and the European Convention on Human Rights'
* Helen keller, Daniela Kühne, and Andreas Fischer, 'Draft Statute for the European Court of Human Rights - A Contribution to Reforming the European System'

There is a new book on the Council of Europe:

* Martyn Bond, 'The Council of Europe Structure, History and Issues in European Politics', published by Routledge.

And there is a new advisory report on the Court:

* The Dutch Advisory Council on International Affairs (AIV) has published a new short advisory report to the Dutch government on the European Court of Human Rights. Unfortunately it is thus far only available in Dutch, but it will get translated in the near future.

And finally, although I do not usually post about myself on here, this is something I am so happy about that I wanted to mention it: just last week, the Royal Dutch Academy of Sciences (KNAW) decided to appoint me as one of this year's ten new members of its Young Academy. In their own words, that is "a dynamic and innovative group of top young scientists and scholars with outspoken views about science and scholarship and the related policy. The Young Academy organises inspiring activities for various target groups focusing on interdisciplinarity, science policy, and the interface between science and society." I am truly honoured by this appointment and look forward very much to contributing to the Academy's activities!

Article on EU Accession to the ECHR

2011-11-22T11:16:00.003+02:00

Profesor Martin Kuijer of the Free University of Amsterdam, who is also the senior adviser on human rights to the Minister of Security and Justice in the Netherlands, has published an article on EU accession to the ECHR in the latest issue of the Amsterdam Law Forum (vol. 3, no. 4, 2011). It is entitled 'The accession of the European Union to the ECHR'. This is the abstract:

This article outlines the European Union’s gradual progression towards a legal obligation to observe human rights: a series of stops and starts from Brussels to Strasbourg with a starring role for Luxembourg and significant supporting roles for Berlin and Karlsruhe. This commitment towards human rights will acquire a new dimension. The Lisbon Treaty requires the European Union to accede to the European Convention on Human Rights (ECHR). With the entry into force of the 14th Protocol to the ECHR, Strasbourg too is now ready to accept the EU as a party to the Convention. But the real work is still to come: the negotiations about the modalities of the accession are underway. This article looks at the main subjects for discussion. Is the EU, as a new party to the ECHR, the ultimate anniversary gift for Strasbourg, or is it a potentially troublesome guest at the party?

Three New PACE Reports on the ECHR and the Court

2011-11-21T10:36:00.004+02:00

Last week, the Committee on Legal Affairs and Human Rights of the Council of Europe adopted three reports on the ECHR and on the European Court of Human Rights. Two of them were presented by rapporteur Marie-Louise Bemelmans-Videc, her last as member of PACE:

* Guaranteeing the authority and effectiveness of the European Convention on Human Rights.In a press conference the rapporteur pointed at the problems facing the Court and specifically at the lack of funds to tackle all issues effectively:

"The yearly cost of a judge at the European Court of Human Rights is higher than the annual contribution made by 15 member states. The total budget of the Court, €58.96 million in 2011, is far less than the budget of the EU Publications Office and less than a quarter of the budget of the Court of Justice of the EU, with a total of 1,230 completed and 2,284 pending cases in 2010, compared to 41,183 applications decided by the Strasbourg Court and 139,650 pending applications. The present situation is simply untenable, not to say suicidal."

The report reiterates some of the known concerns and possible solutions, such as an increased role for national parliaments to oversee national implementation of the European Court's judgments and a continuation of the Court's current poicy to prioritise the most important cases. The third key point is the report is a call on the Committee of Ministers to reinforce the interpretative authority of the Court. I reproduce here in full the conclusions of the report, which incidentally also states that the state parties to the ECHR should not be "tinkering with peripheral issues such as compulsory legal representation and the possible introduction of court fees before the Court" - A nicely phrased boomerang to the criticism that the Court should not indulge in issues peripheral to human rights. Here are the conclusions:

58. Primary responsibility for applying Convention standards lies with domestic courts and authorities; the Strasbourg Court should play a secondary role. This is embodied in the principle of subsidiarity. It is understood that states, in most instances, provide a higher level of protection than the “common European standard” guaranteed by the Court in Strasbourg, and their national authorities are accorded a certain latitude in the implementation of Convention rights, on the understanding that it is the Strasbourg Court which has the final say in cases brought before it: Articles 19, 32 and 46 of the Convention.

59. The statistics, in Strasbourg, look somewhat alarming. The stock of pending applications before the Court stands at 160,000, and the volume continues to rise by over 10% per year. The Committee of Ministers had 9,922 cases pending before it at the end of 2010. But of the pending cases, only some 13% of these were “leading” cases, i.e., those identified as revealing new systemic/structural problems requiring the adoption of new general measures. The rest, amounting to 87%, are in principle clone or repetitive cases. That said, it is it is evident, as indicated by the Court’s Registrar, that the “root problem... is simple and well known: there are too many applications coming to the Court compared to its current capacity.” Numerous attempts to reform the system in Strasbourg have not been able to ebb the overwhelming tide of new applications, diminish the Court’s backlog or, so it is claimed, to create a sustainable system that will continue to be effective in the future. In this respect, it has been argued that even Protocol No. 14 has a Assembly’s and limited, specific lifespan, being merely a tool for the temporary survival of the system while other, more appropriate solutions, are sought.

60. Two separate, and yet intertwined, issues merit priority treatment. The first concerns the need, for the Court to be given the means to regulate the filtering of applications appropriately and deal with repetitive cases (as discussed in Section 3.5 above, at paragraphs 45-51). Governmental experts should not be tinkering with peripheral issues such as compulsory legal representation and the possible introduction of court fees before the Court. The Court has taken the bold step of adopting a “priority policy” which, if implemented rigorously, will “ensure that the most serious cases and the cases which disclose the existence of widespread problems capable of generating large numbers of additional cases are dealt with more rapidly.” By taking this decision, the Court has, in effect, provided “breathing space” to those engaged in the reform process, and will permit all concerned to re-focus discussion away from the obsessive concern with the rising backlog of applications before the Court and instead grapple with problems of “persistent defaulters” in which serious human rights problems exist. The future of the Convention system is in our hands, collectively, and not only in those of the Court. It is therefore principally for member states, their executive, judicial and parliamentary authorities to guarantee the authority and long-term effectiveness of the European Convention of Human Rights.

The report also includes an extremely useful range of detailed references to the Assembly's earlier work on the issue and relevant literature and even kindly mentions this blog several times!

* Ad Hoc judges at the European Court of Human Rights: an overview.This report is a very extensive tour d'horizon of the current rules and practice on ad hoc judges, including a comparison with ad hod judges in other international judicial institutions. The footnotes include a wide range of relevant literature for those particularly interested: a good starting point for further research. And for curious readers: one of the appendices is a list of all current ad hoc judges per country.

And a third one by rapporteur György Frunda:

* An additional protocol to the European Convention on Human Rights on national minorities.The report is a renewed call, after several earlier attempts, to add a specific protocol on national minority protection to the ECHR. As the report states:

Considering the precarious situation of numerous national minority groups in Europe, the Assembly considers that it is time to reconsider its previous proposal concerning the adoption of an additional protocol to the European Convention on Human Rights, which could reinforce the standing of national minorities, both individuals and/or groups, before the European Court of Human Rights and provide them substantive and justiciable rights.

Guest Post on British ECHR Reform Plans

2011-11-11T14:06:00.003+02:00

I am very happy to welcome another guest post of Ed Bates of the University of Southampton. This time it relates to the reform plans for the Court of the current British chairmanship of the Council of Europe:

British plans for reform of the European Court of Human Rights
The United Kingdom took over as Chair of the Committee of Ministers on 7 November 2011. It has published its ‘Priorities and Objectives’ and these include details of how the British government proposes to push forward the on-going reform of the European Court, and to strengthen the implementation of the ECHR.

Priorities and ObjectivesThe British government is seeking ‘effective and enduring solutions’ to the work overload crisis facing the Court. The call is for:

‘[1] a set of efficiency measures, which will enable the Court to focus quickly, efficiently and transparently on the most important cases that require its attention;
[2] strengthening the implementation of the Convention at national level, to ensure that national courts and authorities are able to assume their primary role in protecting human rights;
[3] measures to strengthen subsidiarity – new rules or procedures to help ensure that the Court plays a subsidiary role where member states are fulfilling their obligations under the Convention;
[4] improving the procedures for nominating suitably qualified judges to the Court, and ensuring that the Court's case law is clear and consistent’.

It is stated that the UK ‘will aim for a package of measures to be agreed by means of a Declaration at a Ministerial conference in the UK on reform of the Court’. The Declaration ‘will provide the basis of a Decision of the Committee of Ministers to be adopted at its annual meeting on 14 May 2012’.To get the ball rolling, the UK will host a conference (invitation only) at Wilton Park on a ‘2020 Vision for the European Court of Human Rights’ on 17-19 November 2011 (programme).

The UK statement adds that it ‘will aim to provide the Court with political support from the Committee of Ministers for the measures it is already taking to prioritise and better manage its workload, and to provide a wide margin of appreciation to member states’ authorities in its judgments’ (emphasis added).

Advice on reform from the (British) Commission on a Bill of RightsThe Priorities and Objectives may be read against the background of the interim advice offered by the (British) Commission on a Bill of Rights regarding reform of the Court. This body was set up by the British government earlier this year to examine the case for a British Bill of Rights, but its remit included offering advice on reform of the European Court.

As can be seen from the interim advice, the Commission called for a review of the operation of Article 41, ECHR and the Court’s role with respect to it.

It also called for a programme of fundamental reform establishing agreement ‘on appropriate objective and merit-based principles and rules, and adequate resources, for the selection of judicial candidates at the national level, and for the appointment process at the European level’. This no doubt reflects (at least partly) point 4 from the Priorities and Objectives (and see E8 of the Interlaken Declaration). Here we note that the Council of Europe has recently established an Advisory Panel of Experts to consider judicial nominations from Member States. This initiative was welcomed by the Commission, but there was also some criticism and it was suggested that the new procedure needed to go further. Incidentally, a job advert for the next ‘British’ Judge on the Court, to succeed Judge (now President) Bratza, was published recently.

The main points made by the Commission, however, corresponded to points 1 and 2 from the Priorities and Objectives as set out above. Against the background of the Court’s unmanageable workload emphasis was placed on the need for the effective application of the principle of subsidiarity and effective screening of applications. Here the Commission’s interim recommendation was for ‘an urgent programme of fundamental reform address[ing] the need to give practical effect and meaning to the essential role of the Court, by establishing a new and effective screening mechanism that allows the Court to decline to deal with cases that do not raise a serious violation of the Convention’ (compare to point 1 above as regards as the ‘most important cases that require [the Court’s] attention’).

Such a proposal endorses the approach originally found in the Evaluation Group’s Report of 2001, but which met with resistance at the time. It will be viewed as controversial by those who insist that the right of individual petition and access to the Court for well-founded human rights violations must never be curtailed in any way (on which, see the Joint Statement issued by NGOs in response to the United Kingdom’s Priorities and Objectives, at p 2).

To be clear, the proposal(s) just described is not set out in the British Priorities document, but it could come under ‘new rules or procedures’ as described in point 3. And, of course, with respect to subsidiarity, this lies at the heart of the Strasbourg jurisprudence whilst the need to strengthen this has been central to the philosophy of the Interlaken (especially ‘PP 6’ and ‘B4’)and Izmir declarations (points 5-7 and ‘B’).

It has been suggested, however, that the emphasis on subsidiarity may have another dimension to it, at least as far as the British government is concerned. And here we may also recall the comment above about British support for the Court when it affords States a ‘wide margin of appreciation’.

Subsidiarity - the (British) Attorney General’s London SpeechSuspicions were raised by a speech delivered in London by the British Attorney General, Dominic Grieve, on 24 October, when he stated that he looked forward to the British Chairmanship of the Committee of Ministers. This London speech was cautiously welcomed by some in the United Kingdom, but others expressed concern that there was something more sinister afoot. In this regard see especially the Joint NGO statement (on p 2 at paras 1-4), stressing that subsidiarity should not be a basis to ‘limit the Court’s substantive jurisdiction’ or significantly reduce its mandate to assess compliance with the ECHR.

The Attorney General’s overall point on subsidiarity was that ‘the Court [should] afford Member States a wide margin of appreciation where national parliaments have implemented Convention rights and where national courts have properly assessed the compatibility of that implementation with the Convention’.

As to the role of domestic courts, it was argued that ‘the [Strasbourg] Court should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention’. Of course, a question arises here as to who actually says what ECHR law is in the first place. Other than that I can see no problem with the Attorney General’s approach noting, of course, the proviso ‘not normally’, and, even more importantly, that the national court must have properly applied Convention principles in the first place. The approach taken by the Court in MGN v United Kingdom (2011, see para 150 especially) appears to be in keeping with the Attorney General’s proposal, and paragraph 9(a) of the Interlaken Declaration may be relevant here too.

Regarding the role of national Parliaments, however, it has been suggested that the British government’s agenda is to water down the power of European Judges and preserve greater freedom of action on the part of individual states.

In fact, the Attorney General’s points (as made in his speech) were not made at such a general level. Instead they were specifically linked to the United Kingdom’s intervention in Scoppola v Italy No. 3. That case concerned the controversial matter of whether certain convicted prisoners should be able to vote, and how any regime regulating this might be organised. The United Kingdom retains a blanket ban here, contrary to Hirst v United Kingdom (2005) and subsequent case law. In his London speech Mr Grieve was clear that:

‘… the principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation…’.

Subsidiarity as argued in Scoppola v Italy No. 3Indeed, when he appeared before the Grand Chamber on 2 November (the United Kingdom acting as a third party intervener in Scoppola v Italy No. 3– Dominic Grieve addressed the Court in person), the Attorney General argued that Hirst should be overturned. He stated that there were:

‘serious and reasonably held views within the UK (and it appears elsewhere within the Council of Europe and the broader community of nations) that individuals who commit criminal offences which are serious enough to warrant a term of imprisonment should not be permitted to participate in the democratic process, by voting, for the duration of their period of detention (or perhaps even thereafter.’

Accordingly, the issue of prisoner voting was ‘a political question - by which I mean a question for democratically elected representatives to resolve, against the background of the circumstances and political culture of their own particular state’. It was argued that it was entirely consistent with the Strasbourg jurisprudence that ‘sensitive issues of social policy of this kind should be decided by national Parliaments’. Reference was then made to the margin of appreciation doctrine:

‘The Court has frequently held that in matters of social or economic policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight, and that the Court should intervene only in those rare cases where the decision of the national authorities is "manifestly without reasonable foundation"’.

Subsidiarity and British plans for the CourtLet us put to one side the controversy associated with the fact that the British government is attempting to get Hirst (itself heard by a Chamber and a Grand Chamber) overturned and consider the general arguments put as regards the role of the Court as against national Parliaments. Do the submissions made in Scoppola and the statements made in the London speech offer an insight into some of the ‘new rules’ (point 3 of the Priorities and Objectives) that the British government would like to promote, and, assuming so, what should we make of them?

The real issue is how far the emphasis on the principle of subsidiarity may be pushed. When presented along the lines of the London speech, a key question is what the yardstick would be for assessing whether there exists strong/ reasonable opposing views, and so what areas would benefit from the type of super-irrationality review approach being advocated.

Of course, context will be everything. However, if the yardstick was whether the/ any individual national Parliament strongly opposed a change in relation to the matter in issue we would arrive at a sort of national veto on what the Court could do (at least for these special ‘social policy’ matters, however these are defined).
By contrast, if the yardstick meant that Strasbourg rulings addressing such social policy matters had to accord with a sufficient European consensus, then the implications would be less radical. After all, this was the position (broadly speaking) adopted by the minority back in Hirst, reflecting the Court’s general position. Undoubtedly, however, in a Europe of 47 nations this would reduce the Court’s capacity to signal a gentle lead on certain human rights matters, prisoner voting being a very good example. (On this see, perhaps, the dissenting judgment in S. H. and others v. Austria (3 November 2011)).

Here, of course, the burning question would be: what level of European consensus would be required? Strasbourg jurisprudence to date reveals that this depends on the context. At the very least it seems that the British wish to send a sharp reminder to Strasbourg judges that,when it comes to questions on which there is no clear European consensus,they are part of an international, not domestic constitutional court, implying limitations on their mandate - they should follow not lead.

Domestic politics in the United KingdomThere are plenty of indications that a reduction in the power and influence of Strasbourg Judges would accord with the domestic political mood in the United Kingdom. The Strasbourg Court’s stance on prisoner voting has come in for intense criticism there, and sits alongside a number of other areas of law (notably concerning immigration matters and Articles 3/ 8) that have stirred controversy and given rise to a perception that the Court has become too intrusive and too often sets uniform, European standards.

The Court has been the subject of high profile criticism on the basis that it lacks ‘constitutional legitimacy’, which was a key theme of a debate held in the House of Commons in February 2011 (a debate which was purportedly about prisoner voting, but was dominated by criticism of Strasbourg generally). And in this connection here we may return to the work of the Commission on a Bill of Rights in the UK. We learn from a separate letter published at the time of its interim advice on Court reform that there had been some debate about the Court’s ‘democratic legitimacy’.

The Commission was clearly divided here (see page 5 of the letter). However there was discussion as to whether there was a need for a ‘democratic override’ in relation to Strasbourg judgments, or if not, ‘[t]he jurisdiction of the Court should be defined in such a way as to require it to respect the proper role of democratic institutions in determining social and economic priorities’. Other members of the Commission rejected these suggestions, arguing that they were not required.

With the Court’s legitimacy under scrutiny various pieces have been written (in their personal capacity) by individuals very closely connected to it (see, for example, Judge Bratza’s recent article in the latest edition of European Human Rights Law Review, and Deputy Registrar Michael O’Boyle’s piece in the German Law Journal). It is undoubtedly the case, however, that a significant body of opinion in the United Kingdom remains hostile to the Strasbourg Court.

We therefore wait to see if there is indeed a broader agenda behind point 3 of the British government’s proposals as noted above. Are we witnessing the first steps of an attempt to institutionalise a reduction in the Court’s power of review over aspects of domestic law, and related to this, its power to interpret the Convention in ways that may give rise to incompatibilities with domestic law? Of course, whether this would be achievable politically at the European level is a different matter.

Ed Bates, University of Southampton.

(Thank you to Antoine for permitting an unusually long guest blog!).

Paper on Draft EU to ECHR Accession Agreement

2011-11-10T11:48:00.003+02:00

Three researchers, Xavier Groussot, Tobias Lock, and Laurent Pech, have published a commentary on the draft agreement on the Accession of the EU to the European Convention on Human Rights. The commentary is available as a policy paper on the website of the Fondation Robert Schuman. This is the abstract:

This Paper offers a legal assessment of the draft agreement on the Accession of the EU to the European Convention on Human Rights published by the Steering Committee for Human Rights of the Council of Europe on 14th October 2011. It will recall the most contentious points debated before and during the drafting of the draft accession agreement before offering a critical review of how these points were addressed by the Commission and Council of Europe's experts.

Book on ECHR and Fundamental Rights Interpretation

2011-11-09T10:33:00.005+02:00

Yesterday, I attended the successful PhD defence of Hanneke Senden, a former colleague of mine (congratulations once again, Hanneke!), at Leiden University. Her book deals with the different principles and methods of fundamental rights interpretation, with a focus on the European Court of Human Rights and the the Court of Justice of the European Union. The book, entitled 'Interpretation of Fundamental Rights in a Multilevel Legal System. An analysis of the European Court of Human Rights and the Court of Justice of the European Union' has been published with Intersentia. This is the abstract:

Fundamental rights provisions are known for their relatively vague and general formulation. As a result, judges dealing with these provisions are confronted with many and often controversial interpretative choices. These interpretative choices already present judges operating in a national context with difficulties, but that is even more so for European judges operating in a multilevel context.

The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) are often criticized for delivering judgments that contain debatable choices and do not offer sufficient insight into the reasons which have led the courts to make these choices. Especially in a multilevel context where the cooperation of national authorities plays an important role as regards the effectiveness of the European courts, it is important that interpretation methods and principles are used in a transparent manner so that the reasons that justify a specific interpretative choice are clear.

This volume analyses the use of a selected number of interpretation methods and principles in the fundamental rights case law of the ECtHR and the CJEU. The use of teleological, comparative, evolutive and autonomous interpretation by the ECtHR and the CJEU are elaborately discussed on the basis of both legal theoretical literature and case law. The legal theoretical analysis provides the basis for various relevant questions, hypotheses and (analytical) suggestions, that are further studied in the subsequent case law analysis. This leads to a thorough overview of the role of these interpretation methods and principles and the possibilities for improvement.

Various News

2011-11-07T11:39:00.003+02:00

Last week, on Friday to be precise, the new president of the European Court of Human Rights, Nicholas Bratza took up his duties, succeeding Jean-Paul Costa. See my earlier post on his election here.

Then, updates on two ECHR-related academic publications. First, Karen Bullock and Paul Johnson of the University of Surrey have published their article 'The impact of the Human Rrights Act 1998 on policing in England and Wales' in the British Journal of Criminology. This is the abstract:

This article explores the impact of the Human Rights Act (HRA) 1998 on the police service of England and Wales. It draws upon qualitative data produced during interviews with police personnel to provide the first empirical study of the influence of the HRA on the police service at an organizational level and on the day-to-day working practices of police officers. Whilst the fundamental aim of the HRA is to protect and enhance citizens’ rights and freedoms, we argue that there is
little evidence to suggest that it has promoted a greater awareness of, and respect for, human rights amongst police officers. Rather, the HRA has become institutionalized by the police service into a series of bureaucratic processes that, although requiring conformity by officers, do not encourage active consideration of human rights issues. Instead of shaping police work to make it more responsive to human rights, bureaucratic processes are used by officers to legitimize and justify their existing practices. Focusing on ‘risks’ rather than ‘rights’, officers satisfy the ‘tests’ introduced by the HRA through an assessment of the dangers posed by particular individuals and crime types and the
resource implications of effectively managing them. An important result of this is that the HRA is not used to achieve a balance between individual rights and community interests, but becomes a framework for mandating police decision making and protecting officers from criticism and blame.

Secondly, professor Laurence Burgorgue Larsen, of the University of Paris I, is twice a year publishing a chronicle on the ECHR in French, entitled 'Actualité de la Convention européenne des droits de l'homme' in the French Administrative Law Review (AJDA - Actualité Juridique - Droit Administratif). A valuable resource for French speakers to stay informed of current ECHR developments!

New ECHR Articles

2011-11-03T13:49:00.003+02:00

The newest 'current contents' selection (October 2011) has been put online by my colleagues here at the Netherlands Institute of Human Rights (SIM). It includes a wide selection of human rights related articles. Let me highlight the ones about the ECHR here:

The Common Market Law Review (vol. 48, no. 4, 2011) includes two articles about the European Union's future accession to the ECHR:

* J. Jacqué, The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms, p. 995-1024.
* T. Lock, Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the EU legal order, p. 1025-1054.

The Chicago-Kent Law Review (vol. 86, no. 2, 2011) features an article on jury trials:

* S. Thaman, Should criminal juries give reasons for their verdicts? The Spanish experience and the implications of the European Court of Human Rights decision in Taxquet v. Belgium, p. 613-668.

And last but not least, the European Constitutional Law Review (vol. 7, no. 2) includes an article by judge Costa:

* J., Costa, On the legitimacy of the European Court of Human Rights' judgments, pp. 173-182.

Update on Election of Judges

2011-11-01T10:00:00.004+02:00

The secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has prepared a new version of the information document 'Procedure for electing judges to the European Court of Human Rights'. Apart from information (with links to the relevant documents) on how the election of judges works, it also includes a timetable for all the elections taking place next year, reproduced here:

Election foreseen in April 2012

Belgium - the term of office of the judge elected in respect of Belgium, Mrs Françoise Tulkens, expires on 12 September 2012.10

Bosnia and Herzegovina - judge in respect of Bosnia-Herzegovina, Mrs Ljiljana Mijovic, tendered her resignation, which will take effect on 1 November 2011.

Elections foreseen in June 2012

The terms of office of judges elected in respect of Croatia (Ms Nina Vajic), the Czech Republic (Mr Karel Jungwiert), Poland (Mr Lech Garlicki), the Russian Federation (Mr Anatoly Kovler), Sweden (Ms Elisabet Fura), and the United Kingdom (Sir Nicholas Bratza) expire on 31 October 2012.

The Netherlands - judge in respect of the Netherlands, Mr Egbert Myjer, tendered his resignation, effective 1 November 2012.

As one can see, no less than nine elections are to be held, with some of the most senior judges leaving the Court.

Today: Seminar on Bridging the Implementation Gap

2011-10-31T10:06:00.004+02:00

As a very late announcement, but maybe of interest to those living in the Netherlands: The Netherlands Helsinki Committee, formerly focusing mostly on the OSCE, is today organising a seminar on implementation problems and the ECHR. It is entitled 'Bridging the Implementation Gap - Enlarging Civil Society’s Role in the European Court of Human Rights’ Implementation Process' and takes place in The Hague. This is the conference announcement:

The Netherlands Helsinki Committee (NHC) wishes to stimulate a more serious and consistent implementation of the European Court of Human Rights’ judgments with a view to help bridge 'the implementation gap'. As a civil society organisation, we will focus on the role of NGO’s in the implementation process. To start off our contribution to improved implementation we have planned a seminar entitled

BRIDGING THE IMPLEMENTATION GAP
- Enlarging Civil Society’s Role in the European Court of Human Rights’ Implementation Process -

to take place in The Hague on 31 October 2011. The seminar will be followed by an informal NGO meeting to discuss and adopt an NGO Action Plan on the following day. We would like to cordially invite you to attend and participate in this seminar and contribute to the adoption of the Action Plan.

When discussing the ECtHR with our partners and experts we often notice that they place more emphasis on bringing well-reasoned applications and obtaining equally well-reasoned judgments than on following up on judgments to ensure their full and effective implementation. We are of the opinion that improved implementation has a strong potential to save the ECHR protection system from asphyxiation. Civil society can play a major role in this and a larger role than it has played to date. We define full and effective implementation as taking measures relating to legislation, policy and practice that go beyond the individual case and that remedy the structural problem that is at the root of a violation.

During the seminar we will discuss activities that civil society can initiate to rise to the challenge of bridging the implementation gap. We will invite civil society organisations from across Europe, professionals working at the Council of Europe, Parliamentary Assembly politicians and academics to participate. It is our intention that the seminar serves as the starting point for a Europe-wide civil society alliance to become exceedingly actively involved in the implementation process. This alliance will follow the Action Plan that we will adopt during the informal NGO meeting on the day following the seminar.

The first part of the seminar is dedicated to the importance of implementation and the (potential) role of civil society in the implementation process from the perspective of the Parliamentary Assembly, academia and the NHC. During the second part of the seminar, we will discuss examples of good practice, such as European NGO coalitions established to follow-up on a judgment, examples of structural non-implementation and formal and informal ways to press for implementation available to civil society. You are warmly invited to share your thoughts on this and tell us about initiatives of your organisation during this interactive and rather informal part of the seminar. At the end of the day, we will start brainstorming about an Action Plan and present our preliminary conclusions.

Article on Same-Sex Partners and ECHR

2011-10-28T12:52:00.003+03:00

The Child and Family Law Quarterly (vol. 23, No. 1) includes an article entitled 'Families But Not (Yet) Marriages? Same-Sex Partners and the Developing European Convention ‘Margin of Appreciation’ by Nicholas Bamforth of the University of Oxford. This is the abstract:

This commentary examines two recent decisions of the First Section Chamber of the European Court of Human Rights, namely Schalk and Kopf v Austria and P.B. and J.S. v Austria. Both are significant in accepting that same-sex partnerships may fall within the ‘protection of family life’ limb of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, but Schalk and Kopf rejects the notion that Convention signatory states are required under Article 12 to admit same-sex couples to the right to marry, and declines to determine whether any minimal level of legal protection must be offered under Article 8. Both decisions highlight the central role currently played by the ‘margin of appreciation’ in this area.

Guide on Admissibility Criteria Translated

2011-10-27T16:34:00.003+03:00

The Courts' Practical Guide on Admissibility Criteria, launched at the end of last year, already existed in the Court's working languages English and French. This week, the Guide has been made available in Italian, German, Greek and Bulgarian. Hopefully, up-to-date Russian, Romanian and Turkish translations will follow soon in order to enable access by lawyers from the states from which most applications stem. One may note that the small Principality of Liechtenstein, not really the biggest problem-maker for the Court, has paid for the German translation! Austrian and German lawyers will be grateful.

Report on ECHR and Cypriot Property Issues

2011-10-21T16:13:00.003+03:00

The PRIO Cyprus Centre, the Cypriotic branch of the Peace Research Institute Oslo, has published an online report with recommendations on how to move forward in the Cyprus property issue. The report was written by Rhodri Williams, a forced displacement and property restitution expert, and Ayla Gürel, a research consultant at PRIO. It is entitled 'The European Court of Human Rights and the Cyprus Property Issue Charting a way forward'. The report clearly lays bare the ways in which political actors from both sides have used the Court's judgments and it shows convincingly how nuanced the Court's judgments and decisions are, especially the more recent ones. Well worth reading for anyone interested in either property rights or Cyprus! This is the summary:

Since 1995, the European Court of Human Rights has frequently ruled on property claims arising due to the Cyprus problem. Taken as a whole, the resulting judgments have served to establish parameters that should inform any viable resolution of the Cyprus property issue.

The Court’s rulings are not meant to resolve the property issue. However, they do effectively define a set of objective legal norms that any negotiated solution compatible with the European Convention on Human Rights would be expected to satisfy.

The agreed objective of the ongoing Cyprus negotiations is reunification on a bizonal basis. The italicized terms represent a compromise between competing visions of an appropriate Cyprus solution: the Greek Cypriots have long favoured a unitary state while the Turkish Cypriots have typically sought to maintain the distinctive identity of their numerically smaller community. These visions, which would need to be reconciled in any viable solution to the Cyprus problem, are rooted in the two communities’ contradictory perceptions of the post-1974 split.

In this context, the Court’s judgments do no more – and no less – than to exclude the more extreme aspects of the proposals that have been put forward by the two sides. As a result these judgments delineate only the outer parameters of an acceptable solution. Within these parameters there remains much space for political negotiations to arrive at a mutually acceptable compromise.

Country Profiles on the Court's Website

2011-10-20T14:50:00.005+03:00

This week the European Court of Human Rights took a new step in making its activities more known. The website of the Court now includes country profiles about all state parties to the ECHR. The profiles include a list of previous and current judges in respect of the country concerned, the country's contribution to the Court's budget and registry (the number of persons of a certain nationality working there), a list of the most important cases, information about the most noteworthy pending cases and a statistical overview of cases for the period 2008-2011 per country. A good way to get a quick overview of the most important human rights problems per country.

Newest Issue of German Law Journal dedicated to ECHR

2011-10-19T12:12:00.003+03:00

The newest issue of the respected online German Law Journal (vol 12. No. 10, 2011) is entirely dedicated to ECHR issues. The articles are based on papers presented at University College Dublin in April of this year at a conference entitled "The Legacy and Future of the European Court of Human Rights". This collection of articles was edited by Kanstantsin Dzehtsiarou and Alan Green of UCD and focuses on legitimacy issues amongst others. These are the articles included:

* Legitimacy and the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners, Kanstantsin Dzehtsiarou & Alan Greene

* The European Court of Human Rights: Yesterday, Today and Tomorrow, Mr. Justice John Hedigan

* European Consensus and the Evolutive Interpretation of the European Convention on Human Rights, Kanstantsin Dzehtsiarou

* Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights’ Jurisprudence on LGBT Rights, Sarah Lucy Cooper

* Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights, Alan Greene

* Dismantling the Iron-Cage: the Discursive Persistence and Legal Failure of a “Bureaucratic Rational” Construction of the Admissibility Decision-Making of the European Court of Human Rights, Andrew Tickell

* “A More Secure Europe of Rights?” The European Court of Human Rights, the Court of Justice of the European Union and EU Accession to the ECHR, Noreen O’Meara

* The ECHR, the EU and the Weakness of Social Rights Protection at European Level, Roderic O’Gorman

* The Future of the European Court of Human Rights, Michael O’Boyle

Article on Islam, Secularism and the ECHR

2011-10-18T10:10:00.005+03:00

The newest issue of the Michigan Journal of International Law (vol. 32-4, 2011) includes an article on the ECHR, entitled 'Islam in the Secular Nomos of the European Court of Human Rights' written by Peter G. Danchin of the University of Maryland. sine it contains no abstracts, this is the table of contents for your information:

Introduction

I. The Concept of the Secular Public Sphere
A. The Antinomies of Secularism
1. The Right to Freedom of Religion and Belief
2. Public Reason and Private Faith
3. The Authority of Public Reason
B. Rethinking the Secular
C. Between Rationality and Reason

II. Religious Freedom in ECHR Jurisprudence
A. The Rights of Religious Minorities
B. Freedom from Injury to Religious Feelings
C. The Claims of Muslim Communities

III. Islam in Article 9 Jurisprudence
A. The Scope of the Right to Religious Freedom
1. Enlightenment Rationalism
2. Value Pluralism
3. Pluralism and Islam
B. Public Order and the Rights of Others
1. Rival Enlightenments
2. From Blasphemy to Incitement to Religious Hatred
C. Is “Secularism” Necessary in a Democratic Society?

Conclusion

New Academic Articles on the ECHR in French

2011-10-17T12:58:00.002+03:00

The newest issue of the Revue trimestrielle des droits de l'homme has been published (No. 88, October 2011). It includes the following ECHR-related articles:

* Dean Spielmann, La reconnaissance et l’exécution des décisions judiciaires étrangères et les exigences de la Convention européenne des droits de l’homme : Un essai de synthèse.
* Frédéric Vanneste, Droit international général et droit international des droits de l’homme : l’apport de la Cour européenne des droits de l’homme.
* Rodolphe Mésa, Les mesures de sûreté post sententiam privatives et restrictives de liberté dans le droit de la Convention européenne des droits de l’homme.
* Elisabeth Lambert-Abdelgawad, L’exécution des arrêts de la Cour européenne des droits de l’homme (2010).
* Michel Puéchavy, La difficile conciliation de l’oralité des débats avec le respect du principe du contradictoire (obs/s. Cour eur. dr. h., Labbé c. France, 12 octobre 2010).
* Amandine Philippart de Foy, La provocation policière devant la Cour européenne des droits de l'homme (obs/s. Cour eur. dr. h., Bannikova c. Russie, 4 novembre 2010).
* Jean-Pierre Marguénaud, Le nom du couple binational devant la Cour européenne des droits de l'homme (obs/s. Cour eur. dr. h., Losonci Rose et Rose c. Suisse, 9 novembre 2010).
* Aurélien Antoine, Quand Naomi Campbell fait la une… du droit de la Convention européenne des droits de l’homme (obs/s. Cour eur. dr. h., MGN Limited c. Royaume-Uni, 18 janvier 2011).
* Cédric Raux, La politique d’asile de l’union européenne dans le viseur de la Cour européenne des droits de l’homme (obs/s. Cour eur. dr. h., M.S.S. c. Belgique et Grèce, 21 janvier 2011).

More Administrative Autonomy for the Court

2011-10-14T10:45:00.004+03:00

Earlier this week, the Committee of Ministers of the Council of Europe adopted resolution CM/Res(2011)9, which amends the Staff Regulations with regard to delegation of staff management powers to the Registrar of the European Court of Human Rights. The resolution enables the delegation of certain administrative powers from the Secretary General of the Council of Europe to the Registrar. This fits in the Interlaken process which is aimed at making the Court mroe efficient. More administrative autonomy is one way of doing so. Since the resolution is relatively short, I reproduce it here in full:

The Committee of Ministers, in accordance with Article 16 of the Statute of Council of Europe,

Having regard to Articles 36, paragraph c, and 37, paragraph b, of the Statute of the Council of Europe;

Having regard to Article 24, paragraph 1, of the European Convention on Human Rights and Rule 17, paragraph 1, of the Rules of Court;

Having regard to the Staff Regulations and Appendices thereto;

Having regard to the decisions taken at the High-level Conference on the Future of the European Court of Human Rights (Interlaken, 18-19 February 2010) and notably point 8 (b) of the Action Plan adopted at that conference, which calls upon States Parties and the Council of Europe to grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe;

Bearing in mind the need to preserve the institutional coherence and integrity of the Council of Europe as a whole;

Considering it necessary to accord the Court an appropriate level of administrative autonomy in staff matters;

Considering that Articles 36, paragraph c, and 37, paragraph b, of the Statute of the Council of Europe do not preclude a delegation of decision-making authority in staff related matters in the name and on behalf of the Secretary General;

On a proposal by the Secretary General, who has consulted the Staff Committee under Article 6, paragraph 1, of the Regulations on staff participation (Appendix I to the Staff Regulations),

Resolves as follows:

Article 1The last sentence of paragraph 2 of Article 59 of the Staff Regulations shall henceforth read as follows:

“The expression “administrative act” shall mean any individual or general decision or measure taken by the Secretary General or any official acting by delegation from the Secretary General.”

Article 2An article entitled “Article 61bis – Decisions relating to the Registry of the European Court of Human Rights” and worded as follows shall be added before Article 62 at the beginning of Part VIII: Final provisions of the Staff Regulations:

“1. By delegation from the Secretary General, the Registrar of the European Court of Human Rights shall take decisions relating to the Registry under the following provisions of these Regulations and Appendices hereto:

a. Article 3, paragraph 2

b. Articles 11 and 13, Article 21 and Article 22bis, paragraphs 1 to 3bis. For the purpose of Article 22bis, paragraph 1, the Deputy Registrars shall have the competence of Head of Major Administrative Entity

c. Article 25, paragraph 2, Article 26 with regard to facts and information concerning the Court, Article 27, paragraphs 1 and 2, with regard to the work of the Court, Article 28 with regard to information concerning the Court, and Articles 32 to 36

d. Article 52

e. Articles 54, 56 and 57 to the extent the alleged disciplinary offence concerns the substantive work of the Court

f. Appendix II: Regulations on appointments

i. Article 3

ii. Article 5, paragraphs 1 and 2. For the purpose of paragraph 1bis, the Deputy Registrars shall have the competence of Head of Major Administrative Entity

iii. Articles 6 and 7

iv. Article 15

v. Article 16, paragraphs 2 to 5

vi. Articles 17 and 18

vii. Article 21, paragraphs 1 to 4

viii. Article 24, paragraphs 1 to 14 and 16. The application of Article 24, paragraphs 2, 7, 10 and 13, shall be without prejudice to the Secretary General’s power to set out, in a Rule, conditions for granting additional steps to candidates with more extensive professional experience

ix. Article 25, paragraphs 1, 2, 5a and 5b, with regard to appointment to grade A6

x. Articles 28 and 29

a. Article 13 of Appendix IV: Regulations governing staff salaries and allowances

b. Appendix VII: Regulations on unpaid leave, with the exception of Article 6, paragraph 1

c. Appendix VIII: Regulations on extra duties and night work

d. Appendix IX: Regulations on part-time work, with the exception of Article 9, paragraph 3

e. Appendix X: Regulations on disciplinary proceedings to the extent the alleged disciplinary offence concerns the substantive work of the Court

2. The authority exercised by the Secretary General under Article 2 of these regulations with regard to the Registry shall have regard to paragraph 1 above.

3. The Registrar shall take the decisions referred to in paragraph 1 above in conformity with these regulations and appendices hereto and any implementing provisions issued by the Secretary General in accordance with these regulations and appendices hereto. The Secretary General shall inform the Registrar of any complaint under Article 59 of these regulations relating to such decisions

4. For the purposes of application of paragraph 1 above, the recommendations of the Appointments Board under the provisions of Article 9, Article 12, Article 13, Article 14, Article 16, paragraph 1, and Article 20 of Appendix II of Regulations on Appointments, shall be made to the Registrar.”

Article 3An article entitled “Article 61ter – Regrading of posts at the Registry of the European Court of Human Rights” and worded as follows shall be added after Article 61bis of the Staff Regulations: “With respect to the regrading of posts at the Registry of the European Court of Human Rights, the Secretary General shall exercise the powers provided in Article 2, paragraph 5, of Appendix III: Regulations on the table of posts, with the agreement of the Registrar, except where, in the context of an overall job classification review, the Secretary General exercises this power in a way which affects posts in all sectors and Major Administrative Entities of the Council of Europe.”

Article 4A paragraph 1bis shall be inserted after paragraph 1 of Article 21bis of the Regulations on Appointments (Appendix II to the Staff Regulations) and worded as follows: “The provisions of paragraph 1 do not apply to staff members carrying out their duties at the Registry of the European Court of Human Rights.”

Article 5Article 26, paragraph 2, indent a, of the Regulations on Appointments (Appendix II to the Staff Regulations) shall be deleted.

Article 6This resolution shall enter into force on 1 January 2012.he

New Book on Positive Obligations and the ECHR

2011-10-13T09:51:00.003+03:00

A new book has been published with Routledge by Dimitris Xenos (of the European Public Law Organisation in Athens)entitled 'The Positive Obligations of the State under the European Convention of Human Rights'. This is the abstract:

The system of the European Convention of Human Rights imposes positive obligations on the state to guarantee human rights in circumstances where state agents do not directly interfere. In addition to the traditional/liberal negative obligation of non-interference, the state must actively protect the human rights of individuals residing within its jurisdiction. The liability of the state in terms of positive obligations induces a freestanding imperative of human rights that changes fundamentally the perception of the role of the state and the participatory ability of the individual, who can now assert their human rights in all circumstances in which they are relevant. In that regard, positive obligations herald the most advanced review of the state’s business ever attempted in international law.

The book undertakes a comprehensive study of positive obligations: from establishing the legitimacy of positive obligations within the system of the Convention to their practical implementation at the national level. Analysing in depth legal principles that pervade the whole system of the Convention, a coherent methodological framework of critical stages and parameters is provided to determine the content of positive obligations in a consistent, predictable and realistic manner.

This study of the Convention explains and critically analyses the state’s positive obligations, as imposed by the European Court of Human Rights, and sets out original proposals for their future development. The book will be of interest to those who study, research or practice public law, civil rights and liberties or international/European human rights law.

Trying it Twice

2011-10-12T10:47:00.007+03:00

Rare are the cases in which applicants win their case in Strasbourg and then return to Strasbourg and again win a case when they are not satisfied with the way the state handles the outcome. This happened in this week's judgment in the case of Emre v. Switzerland (No. 2) . Emre is a Turkish national who had been living in Switzerland from the age of six. In his late teens and early twenties, he was convicted for a range of offences, including robbery and assault. As a result, he was expulsed and an indefinite ban on re-entry was pronounced by domestic courts in Switzerland. Emre lodged a complaint with the European Court of Human Rights, arguing that this violated his right to private andd family life (Article 8 ECHR). In August 2008, the Court held in its first judgment on the situation that this was indeed the case. Indicating in detail a wide range of factors (nature of the offences, severity of the penalties, strength of his ties with Switzerland and Turkey, among others) to be taken into account, it concluded that the Swiss authorities had not struck a fair balance. To their credit, the Swiss courts subsequently re-assessed the case and came to a new conclusion: the ban would now be for ten years instead of indefinitely. Arguing that this new judicial assessment constituted a new violation of his rights, Emre went to Strasbourg again.

The question then presented itself not only whether the new, shorter ban constituted a violation of Article 8 but also whethwer the previous judgment of Switzerland had been complied with (the obligation of Article 46 ECHR). The Court dealt with these two issues in conjunction. It assessed that the ten year ban did not comply with the conclusions and spirit of its own 2008 judgment. It held that the Swiss domestic court (le Tribunal fédéral) had subsituted the Court's balancing of interests by its own. Even if one would suppose, the Court went on to ascertain, that such a thing would be admissible, such renewed balancing should be complete and convincing in dealing with all the relevant factors the Court had identified. The Swiss court had, in the European Court's view, mainly focused on the element of unlimited duration at the detriment of other factors. Ten years was still disproportionate, in the Court's eyes.

And then, in a rather far-reaching conclusion, the Court held the following (in para. 75):

"l’exécution la plus naturelle de l’arrêt de la Cour, et celle qui correspond le plus à la restitutio in integrum, aurait été d’annuler purement et simplement, et avec effet immédiat, l’interdiction de territoire contre le requérant. A supposer même qu’un autre résultat aurait pu être acceptable, la Cour estime que la nature obligatoire des arrêts au sens de l’article 46 § 1 et l’importance de leur exécution effective, de bonne foi et compatible avec les « conclusions et l’esprit » de l’arrêt auraient commandé, dans les circonstances concrètes de l’affaire, un examen plus complet des considérations du premier arrêt de la Cour."

Thus, the most "natural interpretation" (whatever that may mean in legal terms) and the one closest to restitutio in integrum would have been to annul immediately and completely the ban. And even if another result (a shorter ban) would have been acceptable, a good faith execution of the Strasbourg judgment by Switzerland would have necessitated a more complete application of the considerations in the first judgment of the European Court in this case.

What does this tell us? That is not easy to answer. The Court leaves the door slightly open for a state's own assessment, as long as it scrupulously applies all considerations indicated by the Court, or in the alternative the more "natural" solution is one which is as close as possible to restitutio in integrum. Is this another step towards more specific application of the Court's judgments? It certainly requires taking all the pointers the Court gives when finding a violation very seriously, even if no precise indication is given in the operative part of the judgment under Article 46 ECHR. The judgment shows that in this case the most beneficial solution for the applicant should have been chosen if the state was not prepared to be procedurally thorough enough to work in a convincing and complete way with all the Court's yardsticks. The more obedient the state is procedurally (following the Court's criteria), the more the Court is prepared to give leeway on the material assessment (the actual outcome of the balancing), it may seem. How this would apply to other situations than re-entry bans, and to situations covering other articles than 8 ECHR, remains to be seen ...

Judges Malinverni (the judge elected in respect of Switzerland, now succeeded by Helen Keller) and Björgvinsson dissented, arguing that under Article 46 ECHR states have the liberty to chose the way in which they implement the Court's judgments, especially - as in this case - when the judgment did not indicate specific measures to be taken. The renewed assessment by domestic courts, in their view, fell within the margin of appreciation.

The judgment itself is in French but the press release in English can be found here.

New Book on Non-ECHR Monitoring in Council of Europe

2011-10-07T10:45:00.003+03:00

Gauthier de Beco, of the Centre for Philosophy of Law at the University of Louvain, has written 'Human Rights Monitoring Mechanisms of the Council of Europe' published with Routlegde. Finally a book that introduces and systematically compares, in short introductions in one volume, all the non-ECHR human rights monitoring mechanisms of the Council of Europe. This is the abstract:

The book studies the human rights monitoring mechanisms of the Council of Europe. It provides an in-depth examination of six such mechanisms: the Commissioner for Human Rights, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT), the European Committee of Social Rights (the ECSR), the Advisory Committee on the Framework Convention for the Protection of National Minorities (the ACFC), the European Commission against Racism and Intolerance (ECRI) and the Committee of Experts of the European Charter for Regional or Minority Languages (the CECL).

The human rights monitoring mechanisms of the Council of Europe seek to establish a permanent dialogue with governments to encourage them to better implement human rights treaties. They function principally through the use of national reports, on which basis they make recommendations, and may also visit or question states directly. The book looks at each mechanism in turn, discussing their composition, functions and working methods, as well as their relationship with other actors. It includes both a general discussion of the role of European human rights monitoring mechanisms as well as a comparative analysis of these mechanisms. The book aims to provide a clear understanding of the underlying approach of European human rights monitoring mechanisms and the challenges faced by them in terms of effectiveness. It will be useful for practitioners and students alike, especially those following courses in human rights or related fields.

And these are the chapter with contributors:

* Preface by Thomas Hammarberg
* Introduction: The Role of European Human Rights Monitoring Mechanisms, Gauthier de Beco
* 1. The Commissioner for Human Rights, Lauri Sivonen
* 2. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (The CPT), Renate Kicker
* 3. The European Committee of Social Rights (The ECSR), Olivier De Schutter and Matthias Sant’Ana
* 4. The Advisory Committee on the Framework Convention for the Protection of National Minorities (The ACFC), Gauthier de Beco and Emma Lantschner
* 5. The European Commission against Racism and Intolerance (ECRI), Lanna Yael Hollo
* 6. the Committee of Experts of the European Charter for Regional or Minority Languages (The CECL)
* Robert Dunbar Conclusion: A Comparative Analysis of European Human Rights Monitoring Mechanisms, Gauthier de Beco

Hearing on the Katyń Massacre Case

2011-10-06T11:05:00.005+03:00

Today history is featuring in the European Court of Human Rights. A hearing is currently being held on the aftermath of the Katyń massacre, a notorious episode of the Second World War. In 1940 the secret police of the Soviet Union murdered over 21,000 people, including many Polish army officers after the Soviets had occupied parts of Poland. When later on in the war the Nazis discovered the mass graves, the Soviets denied responsibility and continued to do so until 1990, when an official investigation was started, which was later taken over by the Russian Federation after the dissolution of the USSR. A few years ago a number of relatives of those murdered in Katyń turned to the European Court in Strasbourg to complain about the inadequacy of the investigation. This is what the Court's press release has to say about the case so far:

The investigations into the mass murders were started in 1990. The criminal proceedings lasted until 2004 when the decision to discontinue the investigation was made. The text of the decision has remained classified to date and the applicants did not have access to it. On 26 November 2010 the Russian Duma adopted a statement about the “Katyń tragedy”, in which it reiterated that the “mass extermination of Polish citizens on USSR territory during the Second World War” had been carried out on Stalin’s orders and that it was necessary to continue “verifying the lists of victims, restoring the good names of those who perished in Katyń and other places, and uncovering the circumstances of the tragedy...".

The applications were lodged with the Court on 19 November 2007 and 24 May 2009
respectively. They were communicated to the Russian authorities respectively in
October 2008 and November 2009. The Court declared admissible, on 5 July 2011, the applicants’ complaint under Article 2 (right to life) of the European Convention on Human Rights, namely that the Russian authorities failed to carry out an adequate criminal investigation into the circumstances surrounding the deaths of their relatives. At the same time, the Court joined to its examination of the merits of the complaint the issue of temporal jurisdiction, in other words, whether the Court could examine the adequacy of an investigation into events which had occured before Russia ratified the Convention.

In the same decision, the Court also declared admissible the applicants’ complaint that the way the Russian authorities reacted to their requests and applications amounted to ill-treatment under Article 3 (prohibition of inhuman or degrading treatment) of the Convention.

From a legal point of view the case indeed raises important questions on the ratione temporis jurisdiction of the Court. For the relatives of the victims, one may hope the case will contribute indirectly to more clarity on what happened and who was responsible. A lot of historical works have been published on the tragic events of 1940, but a full official investigation by the Russian authorities is still lacking.

The hearing will be available online this afternoon here. The earlier partial admissibility decision of July 2011 can be found here.

Article on Supreme Courts and Evolutive Interpretation of the ECHR

2011-10-05T10:11:00.003+03:00

Eirik Bjorge of the universities of Oxford and Oslo has published an article in the International Journal of Constitutional Law (Vol. 9, issue 1, 2011), entitled 'National Supreme Courts and the Development of ECHR Rights' in which he looked at the cases of the United Kingdom, France and Germany. This is the abstract:

The evolution of rights under the European Convention on Human Rights (ECHR) has in recent years engendered the question of how far national supreme courts ought to go in interpreting the Convention standards evolutively. Should national courts, in other words, play an active role in the development of the Convention, or must they defer this development to the Court? Examining the jurisprudence of national supreme courts in the U.K., France, and Germany, the present article examines this question both “normatively,” by way of looking at the external exigencies of the Strasbourg jurisprudence, and “descriptively,” by way of looking at what in point of fact the national courts have done in this regard. The three national judiciaries studied here have approached this in various ways. The common theme is that all three systems have gone very far in taking onboard a national concept of the ECHR precept of “evolutive interpretation.”

A History of Violations in Statistics per State

2011-10-04T10:18:00.004+03:00

The European Court of Human Rights has published an online statistical overview of its entire history of judgments grouped per state in pie charts 'Statistics on Judgments per State'. It covers the whole period of 1959 to 2010. For each country it shows a division into which rights were mostly at stake and what the outcome of the proceedings was (violation, no violation, striking out of list, friendly settlement).

The pie charts show that, as is widely known, most violations concern the right to a fair trial (including the notorious problem of too lengthy judicial proceedings), the right to liberty and the protection of property (these taken together take up 71% of the total). But the differences between countries are quite striking. Sometimes this is due to the relatively small number of judgments concerning a certain counry. For Andorra 50% of the very small number of violations found was about the prohibtion of discrimination. Often, it gives an insight into where the biggest human rights problems for a particular country can be found (at least within the sphere of ECHR rights). For Hungary, for example, a striking 82% of violations concerned the length of proceedings, in Bosnia 32% of violations related to the protection of property. The same variety can be found in the outcome of proceedings: whereas for Bulgaria and Russia only 1% ends up in friendly settlements, for Iceland this is 25% percent. Even taking account the obvious difference in size between the countries and the number of complaints, it also might show a different attitude in working towards outcomes which are acceptable for both applicants and states. For Turkey, for example, which also has to deal with a high numer of complaints, the percentage is 8%.

The overview also shows the grand total of the Court's history: 96% of all applications was either inadmissible or struck out. Only 4% ended up in a judgment. Again a clear pointer that any concerns or fears that the Court is encroaching on a large scale on national powers should be put into perspective.

European Yearbook on Human Rights 2011 Published

2011-09-30T15:22:00.002+03:00

The newest edition of the European Yearbook on Human Rights (2011) has been published. The yearbook includes a very wide range of articles on human rights, including a number on the ECHR. This is the abstract:

In the human rights field, 2010 was a year both of continuity and reform: from the 10th anniversary of the European Charter on Fundamental Rights and the quickening pace of the EU’s accession to the European Convention on Human Rights to the reform of the Human Rights Council.

Defining and discussing key developments in human rights in Europe and in the world, the third edition of the European Yearbook on Human Rights brings together 33 contributions by renowned human rights experts that provide a much needed overview and much sought after analysis.

Edited jointly by representatives of four major European human rights research, teaching and training institutions, the Yearbook 2011 contains extensive sections on developments in the field of the three main organizations charged with securing human rights in Europe: EU, Council of Europe and OSCE. A further chapter contains contributions on the role of civil society in human rights protection and on cross-cutting topics.

Holistic in its approach, but detailed in its analyses, the European Yearbook on Human Rights 2011 provides its readers with a comprehensive overview of the human rights situation in Europe in 2010. The impressive array of authors – academics and diplomats, practitioners and human rights experts – makes the book essential reading for anyone interested in human rights in Europe and beyond.

The articles relating to the European Convention on Human Rights are:

* L’adhésion de l’Union européenne à la Convention européenne des droits de l’homme et des libertés fondamentales, by J. Jacqué (p. 143-158)
* Accession revisited: will fundamental rights protection trump the European Union's legal autonomy, by P. Gragl (p. 159-172)
* The role of interim measures indicated by the ECtHR under Rule 39 for the protection of aliens against their removal contrary to the ECHR, by A. Szklanna (p. 361-374)
* Strasbourg’s interim measures under fire: does the rising number of state incompliances with interim measures pose a threat to the European Court of Human Rights? by Y. Haeck, C. Burbano Herrera and L. Zwaak (p. 375-403)
* "No significant disadvantage" - first case-law on the new admissibility criterion introduced by Protocol No. 14 to the European Convention on Human Rights, by S. Baier (p. 405-413)
* Implementation of judgments of the European Court of Human Rights as a tool to establish a "language of law": the case of Moldova, by I. Lupusor (p. 415-425)
* Across the universe? The extra-territorial application of the European Convention on Human Rights, by R. Lawson
(p. 427-444)
* The litigation practices of non-governmental organizations before the European Court of Human Rights: an overview, by L. van den Eynde (p. 539-548)

Article on ECHR Application to Northern Cyprus

2011-09-29T15:13:00.004+03:00

The newest issue of the International Journal of Human Rights (Vol. 15, Issue 6, 2011) includes an article on Northern Cyprus and the ECHR. It was written by Leonard Hammer (affiliation not provided) and is entitled "Re-examining the extraterritorial application of the ECHR to northern Cyprus: the need for a measured approach".This is the abstract:

Extraterritorial application of the ECHR to Turkey in northern Cyprus in a whole scale manner is misplaced. Given the underlying reasoning behind the effective control standard that is linked to notions of international humanitarian law and occupied territory, and accounting for a historic understanding of the situation in northern Cyprus and how it developed, it is conceivable that Turkey should not maintain the full gamut of obligations under the ECHR.

Unfortunately, the article is somewhat shoddily edited. The famous Banković is spelled both as Bancovic and Bankovic in this article, for example. And the author Quénivet is misspelled as Quenivet ...

M.S.S. Judgment Echoes in Luxemburg

2011-09-26T09:47:00.007+03:00

At the beginning of this year, the European Court of Human Rights issued its important M.S.S. v. Belgium and Greece judgment, on the asylum seekers transfer system within the European Union (see my earlier report here). In summary, the Court held that asylum conditions in Greece were so bad that not only Greece had violated the ECHR, but also Belgium by transferring an asylum seeker back to Greece. It seemed a matter of time until this would influence EU law and/or practice. Last week, one of the first indications in this respect surfaced: Advocate General Trstenjak of the Court of Justice of the European Union gave an opinion in preliminary ruling procedures in joined cases from the United Kingdom and Ireland. The opinion advices the Court of Justice to apply reasoning in its later decision in these cases which very much echo the M.S.S. case. Importantly, the opinion in effect argues for similar (although not exactly the same) obligations in this regard flowing from the European Union's Charter on Fundamental Rights. The A-G explicitly refers to and uses the M.S.S. judgment in her arguments. The A-G concludes that:

A Member State in which an asylum application has been lodged is obliged to exercise its right to examine that asylum application under Article 3(2) of Regulation No 343/2003 where transfer to the Member State primarily responsible under Article 3(1) in conjunction with the provisions contained in Chapter III of Regulation No 343/2003 would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights. Serious risks of infringements of individual provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003.

And that:

The obligation to interpret Regulation No 343/2003 [the asylum regulation at stake, A.B.] in a manner consistent with fundamental rights precludes the operation of a conclusive presumption according to which the Member State primarily responsible for examining an asylum application will observe the asylum seeker’s fundamental rights under European Union law and all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85. The Member States are not barred, on the other hand, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his asylum application.

Thus, before sending back, a determination should be made whether a serious risk of violation of fundamental rights exists, starting from the rebuttable presumption that such rights will be guaranteed. Thus, in principle mutual trust still exists, unless there are indications otherwise, but the trust is not a blindfold anymore. States are not required to actively establish in advance whether the asylum's seeker's rigths are fully guaranteed, but they are under an obligation to take into account (and act accordingly) indications of serious risks of violations.

Let us see whether the Court of Justice of the European Union will follow this opinion!

The full press release can be found here.

Hat tip to FRA!

New ECHR Articles

2011-09-21T11:35:00.002+03:00

A few new academic articles and papers concerning the ECHR have become available online. The first is an article on human trafficking entitled 'Complementary Protection for Victims of Human Trafficking under the European Convention on Human Rights' published by Vladislava Stoyanova in the Goettingen Journal of International Law (Vol. 3, No. 2, 2011). This is the abstract:

The international legal framework regulating the problem of human trafficking contains the presumption that the return of victims of human trafficking to their countries of origin is the standard resolution for their cases. However, victims might have legitimate reasons for not wanting to go back. For those victims, resort to the legal framework of the European Convention on Human Rights could be a solution. I elaborate on the protection capacity of Article 3 when upon return victims face dangers of re-trafficking, retaliation, rejection by family and/or community and when upon return to the country of origin victims could be subjected to degrading treatment due to unavailability of social and medical assistance. In light of the Rantsev v. Cyprus and Russia case, I develop an argument under Article 4 that states cannot send victims to those countries which do not meet the positive obligations standard as established in the case. Article 8 could be relevant: first, when the level of feared harm in the country of origin does not reach the severity of Article 3 but is sufficiently grave to be in breach of the right to private life and engage the non-refoulement principle, and second, when the victim has developed social ties within the receiving state and the removal will lead to their disruption.

The second is an article on network neutrality on the internet and Article 10 ECHR by Jasper P. Sluijs, entitled 'From Competition to Freedom of Expression: Introducing Art. 10 ECHR in the European Network Neutrality Debate'. This is the abstract:

Network neutrality concerns a heated debate on the role of Internet Service Providers (ISPs) as a potential gate keeper for Internet access of end-users and online content providers. In line with standard practice in European telecommunications policy the European regulatory response to the issue of network neutrality has been framed mainly in economic terms. At the same time, European civil society organizations have interpreted network neutrality in terms of fundamental rights, particularly freedom of expression. Moreover, while the amended regulatory framework for telecommunications now includes explicit references to fundamental rights, it remains unclear if and how fundamental rights should be applied to network neutrality disputes. This article relates network neutrality to the rich body of Art. 10 ECHR case law, and asks to what extent this jurisprudence is of relevance to network neutrality discussions. The findings of this research reveal that the claim that network management by ISPs would violate end-users’ freedom of expression is less straightforward than often assumed. Moreover, the opposite case in which network neutrality regulation violates ISPs’ freedom of expression is less far-fetched than it may seem. These conclusions are meant to move the European discussion on network neutrality and fundamental rights beyond rhetoric, towards a more substantial and analytical approach.

Article on Pilot Judgments most downloaded on SSRN

2011-09-19T11:57:00.002+03:00

Usually it's difficult to assess how many people read one's academic work. But the online open access database SSRN offers the possibility to see at least how many people download articles and thus show initial curiosity in a certain article. I am happy to note that my article 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' which originally appeared in the Greek law journal Nomiko Vima is now the most downloaded article concerning the ECHR on SSRN. Thanks to all readers!

New Book in French on Interim Measures

2011-09-14T09:35:00.002+03:00

A group of lawyers from the 'Young Brussels Bar' has published an edited collection of essays on interim measures at the European Court of Human Rights. The book is entitled 'Les mesures provisoires devant la Cour européenne des droits de l'homme. Un référé à Strasbourg?'. The contributors are Frédéric Krenc, Anna Austin, Claire Dubois-Hamdi, Philippe Frumer, Anne Gillet, Stéphanie Grisard, Frédéric Krenc, Emmanuelle Neraudau, Isablle Niedlispacher, Sylvie Saroléa, Sandrine Watthée, and Yves Winisdoerffer. The full table of contents can be found here. This is the abstract:

La Cour européenne des droits de l’homme peut être saisie de demandes de mesures provisoires. Cette procédure est de plus en plus usitée, alors que la Cour éprouve les pires difficultés pour juguler le développement exponentiel de sa charge contentieuse ordinaire.

Cette procédure reste cependant encore relativement méconnue. elle est, dans certains cas, mal utilisée.

Il faut dire que les mesures provisoires sont assez peu réglementées – elles sont même ignorées par le texte de la Convention européenne des droits de l’homme – et la jurisprudence de la Cour en ce domaine n’est malheureusement pas publiée.

C’est dans ce contexte que la Conférence du jeune barreau de Bruxelles a, en collaboration avec l’institut des droits de l’homme du barreau de Bruxelles, pris l’initiative de consacrer un colloque relativement à ces mesures.

Ce colloque, dont le présent ouvrage comprend les actes, s’est tenu le 18 mars 2011 à Bruxelles et a réuni, autour d’une même table, un panel d’experts composés d’académiques, d’avocats mais aussi d’agents du gouvernement et de membres éminents de la Cour, lesquels ont pu échanger leurs expertises et leurs pratiques, faire part de leurs critiques et formuler d’utiles recommandations.

New Vice-President and Section President

2011-09-13T16:43:00.004+03:00

The judges of the European Court have elected a new vice-president, Josep Casadevall, the judge in respect of small Andorra. In addition, a new Section President was elected: Lech Garlicki, the judge in respect of Poland. Casadevall will serve until 31 October 2015 and Garlicki until 31 October 2012. For more information on the judges, see here.

Article on Inflation of Margin of Appreciation

2011-09-08T17:22:00.003+03:00

The newest issue of our own SIM-based Netherlands Quarterly of Human Rights (vol. 29,No.3, 2001) features an article by Jan Kratochvíl, working at the registry of the European Court of Human Rights, entitled 'The inflation of the margin of appreciation by the European Court of Human Rights'. This is the abstract:

The doctrine of the margin of appreciation, despite being repeatedly used by the European Court of Human Rights, is still to some extent mysterious. Given the doctrine's ambiguity, this article first endeavours to describe it and identify its different usages. It then argues that there is an inflation of the doctrine by its unnecessary application in a number of cases. This excessive use is considered to be unfortunate because the doctrine has a role to play in specifically circumscribed circumstances where it varies the strictness of scrutiny conducted by the Court. Based on the existent case law of the Court, the article provides a set of distinct tests that the Court can apply when invoking a particular margin of appreciation and argues for a predictable and consistent use of the doctrine.

Newest Issue RTDH

2011-09-07T12:59:00.002+03:00

The newest issue of the Revue trimestrielle des droits de l'homme (July 2011, No. 87) is out now. Contents include various ECHR related articles (in French):

* Antoine Garapon, 'Les limites à l’interprétation évolutive de la Convention européenne'

Le présent article est la version écrite de l’intervention faite par l’auteur lors du séminaire tenu le 28 janvier 2011 au siège de la Cour européenne des droits de l’homme et organisé par celle-ci à l’occasion de son audience solennelle de rentrée de 2011, sous le thème «Quelles sont les limites à l’interprétation évolutive de la Convention européenne des droits de l’homme ? ». L’article propose de dépasser l’affrontement entre la jurisprudence de la Cour européenne des droits de l’homme et les cultures nationales en concevant leurs relations comme une mutualisation de la fonction tierce (I). Ni rapport hiérarchique ni simple dialogue, l’impératif de coopération repose sur une reconnaissance mutuelle entre les juridictions nationales et la Cour européenne (II), qui fait passer le cadre implicite des limites à l’interprétation évolutive, de l’espace au temps (III).

Rusen Ergec, 'Fiscalité et droit de propriété sous l’angle de la Convention européenne des droits de l'homme':

L’article 1er du Protocole n° 1 de la Convention européenne des droits de l’homme garantit à toute personne physique ou morale le droit au respect de ses biens. La Cour européenne des droits de l’homme considère l’imposition et les mesures d’exécution y relatives comme une ingérence dans le droit de propriété énoncé dans la disposition précitée. La Cour a développé une jurisprudence relative à la compatibilité de telles mesures avec notamment les exigences de légalité et de proportionnalité. Bien que la Cour laisse aux Etats une large marge d’appréciation en ce qui concerne les taux d’imposition, les procédures d’exécution sont susceptibles de faire l’objet d’une étroite surveillance. D’autres garanties inscrites dans la Convention, comme l’interdiction de discrimination, pourraient renforcer l’Etat de droit en matière d’imposition. La présente étude se propose de mettre en lumière les potentialités souvent sous-estimées de la protection que la Convention européenne offre aux contribuables.

Michel Levinet, 'La conciliation du droit à l’instruction de l’enfant et de l'obligation de respecter les convictions religieuses des parents à la lumière de la Convention européenne des droits de l'homme':

Si diverses dispositions de la Convention européenne des droits de l’homme peuvent entrer en jeu quand il s’agit d’arbitrer les droits de l’enfant et celui des parents au respect de leurs convictions religieuses, celles de l’article 2 de son Premier Protocole revêtent une place essentielle dès lors qu’il faut appréhender la conciliation de ce dernier avec celui de l’enfant à l’instruction. Longtemps objet d’une jurisprudence restreinte, l’article 2 de ce Protocole connaît désormais un développement spectaculaire. Le corpus prétorien pertinent lie les deux droits qu’il contient. Il enracine l’impératif de la préservation des convictions religieuses des parents dans le pluralisme des idées, inhérent à la société démocratique, et valorise leur liberté éducative en interdisant aux Etats d’assurer la diffusion des connaissances au travers d’un prosélytisme intempestif, notamment lorsque les programmes prévoient un enseignement religieux ou des religions. Pour autant, la prise en considération des convictions des parents ne saurait remettre en cause la priorité du droit de l’enfant à l’instruction, priorité tenant à la vocation critique et formatrice de tout enseignement dans une société démocratique, y compris à l’égard du fait religieux lui-même.

Network Neutrality and Article 8 ECHR

2011-09-05T11:24:00.002+03:00

Bert-Jaap Koops (Tilburg Institute for Law, Technology and Society) and Jasper P. Sluijs (Tilburg Law and Economics Center) have published a working paper on SSRN on what might to many perhaps be a surprising angle to approach the ECHR. It's entitled 'Network Neutrality and Privacy According to Art. 8 ECHR'. This is the abstract:

This article presents a structured approach to studying the privacy implications of the network neutrality debate according to art. 8 of the European Convention of Human Rights (ECHR). Network neutrality is a topic discussed in telecommunications policy circles, on how actively Internet Service providers (ISPs) may manage the traffic of content on their networks. While more active network management may lead to more efficient bandwidth allocation, it also strengthens the gate keeping position of ISPs — with possible negative effects in terms of fairness. It is often alleged in European public interest circles that network management that goes beyond ‘neutral’ handling of traffic violates the privacy of Internet users. However, such claims are mostly rhetorical in character and are typically not supported by legal research. We attempt to fill this lacuna by comparing network neutrality related privacy claims to art. 8 ECHR case law. Our findings suggest that an art. 8 ECHR violation due to network management is not as straightforward as sometimes assumed, and mainly depends on the form and technique of network management, and the level of State involvement in network management.

Draft Agreement on EU Accession to ECHR

2011-09-01T11:05:00.010+03:00

Over summer, a draft agreement on the accession of the EU to the ECHR - I reported on negotiations here - has been made public. This draft was negotiated between the Steering Committee for Human Rights of the Council of Europe (CDDH) and the European Commission of the European Union. It sheds light on the practicalities of EU accession. A few of the most notable points:

* The main rationale for accession mentioned by the agreement is increasing coherence in European human rights protection and offering individuals the possibility to access the Court in Strasbourg which can externally control the "acts, measures or omissions of the European Union."

* The European Union will not accede to all (substantive) protocols. Accession (with possibilities for more in the future remaining open) will be limited to the ECHR itself, its first Protocol (including the protection of possessions and the right to education amongst others) and Protocol 6 (abolition of the death penalty). Especially the latter seems merely a symbolic act and it's interesting to note that Protocol 6 leaves open the possibility to use the death penalty in times of war (whereas the more comprehensive Protocol 13 abolishes the death penalty in all circumstances).

* There will be a judge elected in respect of the European Union who will have the same duties and status as the other judges and will participate on an equal footing in the work of the Court. This means that the work of this judge will not be limited - as some expected earlier - to cases related to the EU. For the procedure of election a delegation of the European Parliament will participate, with the size of that representation being equal to the highest number of representatives to which a state is entitled under the statute of the Council of Europe.

* Reflecting the fact that states can act in pursuance of EU law and that states are at the basis of the primary law of the EU, a so-called co-respondent mechanism is foreseen. This means that both EU member states and the EU can, when they so wish, ask to be involved in cases as co-respondent party (rather than as mere third intervening party). The circumstances under which this is possible are set out in the agreement. In practice this will be rare. The drafters noted that only very few cases in the past would have qualified for such a procedure (amongst them Matthews v. UK and Bosphorus v Ireland).

* Whenever the EU is co-respondent and the Court of Justice of the EU (CJEU) has not yet had the opportunity to assess the compatibility of EU law with the ECHR in a particular situation, the Agreement provides for the possiblity for the EU's Court to make such an assessment "quickly" - which will mean under the accelerated procedure of the CJEU.

* The possibility of inter-state cases will with the accession be broadened to inter-party cases, entailing that other states could start proceedings against the EU and vice versa. The exception are EU member states themselves, since EU law bars them from using such other international means of dispute.

* The EU will also participate in the work of the Committee of Ministers of the Council of Europe and have voting rights. In certain circumstances, for example when EU law requires the EU as such and its member states to coordinate their actions (and thus vote similarly in international fora) the agreement includes special voting procedures in order to avoid that the 27 EU member states (a majority within the 47 state Council of Europe) would de facto overrule the others in matters such as the supervision of the execution of judgments and friendly settlements in cases involving the EU.

* The agreement will enter into force three months after ratification by all Council of Europe member states and by the European Union. The modalities of EU ratification are dependent upon EU law. Note that this unique agreement involves many states on two sides of the negotiating table. As experience with the ratification of ECHR protocols shows, this whole process may take a few years.

* Finally, and very important in practice, the EU will fund part of the budget of the Council of Europe's human rights machinery.

A full list of the relevant documents (with links) can be found here.

Upcoming Liber Amicorum Judge Rozakis

2011-08-31T16:01:00.003+03:00

Bruylant Publishers has announced that it will publish, in November, a liber amicorum dedicated to the retiring Greek judge Rozakis. The bilingual book has been edited by Dean Spielmann, Marialena Tsirli and Panayotis Voyatzis and is entitled 'La Convention européenne des droits de l’homme, un instrument vivant / The European Convention on Human Rights, a living instrument'. It's theme is the living instrument doctrine. This is the abstract:

Christos Rozakis served the European Court and the former Commission of Human Rights for twenty-four years, first as a member of the Commission and later as a judge and Vice-President of the Court. On the occasion of his retirement, his colleagues, friends and collaborators wish to express their affection for him and honour his exceptional contribution to the construction of a European system for the protection of human rights.

The theme chosen for this compilation of essays is the European Convention as a “living instrument” intended to be interpreted in the light of present-day conditions. This is how Christos Rozakis approached the text of the Convention during his career in Strasbourg. This approach is based on an evolutive interpretation of the articles of the Convention aimed at enhancing the effectiveness of human rights in modern European society.

The variety of issues linked to the dynamic method of interpretation of the Convention is reflected in the topics covered by the authors of the different contributions to this book. These original contributions, each dealing with an issue of topical interest, constitute a testimony to this person who has contributed in such an important way to the influence of the jurisprudence of the European Court.

And this is the table of contents:

• Dean Spielmann, Marialena Tsirli et Panayotis Voyatzis, Préface. Hommage au juge Christos L. Rozakis
• Jean-Paul Costa, Allocution pour le départ du juge Christos L. Rozakis
• Nicos C. Alivizatos, In Search of Legitimacy. A Retrospection of the Constitutional History of the Greek Monarchy
• Ireneu Cabral Barreto, Un bref regard sur le passé et un espoir pour l’avenir, La Commission, l’ancienne Cour et la nouvelle Cour
• Antônio Augusto Cançado Trindade, The Expansion of the Material Content of Jus Cogens: The Contribution of the Inter-American Court of Human Rights
• Olga Chernishova et Nina Vajic ́, The Court’s evolving response to the States’ failure to cooperate
• Vassilis Chirdaris, The limits of interpretation of the Strasbourg Court and the principle of non-regression
• Jean-Paul Costa et Michael O’Boyle, The European Court of Human Rights and International Humanitarian Law
• P. Nikiforos Diamandouros, Vers la reconnaissance d’un droit d’accès aux informations détenues par les autorités
• Haritini Dipla, The contribution of the European Court of Human Rights to the absolute ban of torture. The practice of diplomatic assurances
• Nikos Frangakis, A State’s exceptional economic measures under the European Convention on Human Rights – The Case of the “Greek Memorandum”
• Erik Fribergh, The future of the Court after Interlaken
• Khanlar Hajiyev, The evolution of positive obligations under the European Convention on Human Rights – by the European Court of Human Rights
• Sverre Erik Jebens, Illegally obtained evidence in criminal cases. An Analysis on the Basis of Three Grand Chamber Judgments
• Danute Jocĭene, Administrative justice in Lithuania: some aspects from the perspectives of the European Convention on Human Rights
• Lucy Kiousopoulou, La dimension écologique de la Convention européenne des droits de l’homme et les limites du contrôle juridictionnel
• Anatoli Kovler, Le message des Grecs (aux sources anthropologiques de la Convention européenne)
• Yannis Ktistakis, The protection of forum internum under article 9 of the ECHR
• George Letsas, Judge Rozakis’s Separate Opinions and the Strasbourg Dilemma
• Petros Liacouras, Protecting Minority Members in Greece: The View from Strasbourg
• Loukis Loucaides, A judge with a progressive mind
• Giorgio Malinverni, La compétence de la Cour pour surveiller l’exécution de ses propres arrêts
• Virginia Mantouvalou, Work and the European Convention on Human Rights: A dynamic Relationship in Need of Justification
• Paul Martens, Mémoires d’un juge ad hoc
• Egbert Myjer, One Salduz a Year is enough. 20 Associative Thoughts on Judge Rozakis, Judicial Activism and the Salduz Judgment
• George Nicolaou, The Jurisprudence of the European Court of Human Rights on Special Advocates
• Petros J. Pararas, La réticence européenne au regard des discriminations positives
• Dragoljub Popovic ́, The Role of Precedent in the Jurisprudence of the European Court of Human Rights
• Guido Raimondi, Union européenne et Convention européenne des droits de l’homme après Lisbonne
• Emmanuel Roucounas, Dissenting Opinions in the European Court of Human Rights
• Linos-Alexander Sicilianos, The Individual as a Catalyst for Change in International Law: Interactions between General International
Law and Human Rights
• Vassilios Skouris, First thoughts on the forthcoming accession of the European Union to the European Convention on Human Rights
• Dean Spielmann and Leto Cariolou, The Right to Protection of Reputation under the European Convention on Human Rights
• Elisabeth Steiner, Some reflections on the process which led to the preparation of the European Convention on Human Rights
• Christian Tomuschat, Reparation Orders by International Human Rights Bodies – Financial Compensation or Restitutio in Integrum?
• Stavros Tsakyrakis, Is there a General Right of Non-Disclosure?
• Marialena Tsirli, Terre, Air, Mer : jusqu’où s’étend la juridiction des Etats dans le système de la Convention ? Quelques réflexions sur la compétence territoriale de la Cour
• Françoise Tulkens et Sébastien Van Drooghenbroeck, De l’ancienne Commission à la nouvelle Cour. Une continuité assurée, un héritage bienvenu
• Panayotis Voyatzis, Les effets des arrêts de la Cour européenne des droits de l’homme dans le temps juridique. Les cas du revirement de jurisprudence et de la violation potentielle
• Ineta Ziemele, Other rules of international law and the European Court of Human Rights: a question of a simple collateral benefit?

The book can be pre-ordered now with the publisher. Hat tip to DS!

Book on Hindrances to Individual Petition

2011-08-30T10:04:00.003+03:00

Professor Elisabeth Lambert Abdelgawad of the University of Strasbourg has written 'Preventing and sanctioning hindrances to the right of individual petition before the European Court of Human Rights'(Intersentia 2011). This is the abstract:

Whereas it is common today to focus on the overwhelming backlog of applications before the European Court of Human Rights, this book deliberately shows that the Court in Strasbourg could be seized by even more applicants if States Parties really confirmed to Article 34 ECHR, according to which “The High Contracting Parties undertake not to hinder in any way the effective exercise of this right”. In the past fifty years however, more and more direct or indirect hindrances have been devised.

This volume takes a very concrete and practical look at these hindrances and brings together both researchers and human rights defenders. After an introduction to the topic in Part 1, the second part of the book analyses the hindrances involving the most vulnerable groups (prisoners, migrants and foreigners) while the final Part deals with concrete experiences and sets forth a number of recommendations for a better prevention and sanctioning of these hindrances.

Al-Skeini and Al-Jedda Case Note

2011-08-29T10:51:00.002+03:00

The ever-productive Marko Milanovic of the University of Nottingham has posted a dual case note article on Al-Skeini and Al-Jedda on SSRN, entitled 'Al-Skeini and Al-Jedda in Strasbourg'. It will not be published in print until 2012 in the European Journal of International Law, but it is already available online now. Here is the abstract:

The article analyses the European Court of Human Rights’ recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.

ECHR as a Cosmopolitan Legal Order

2011-08-26T14:05:00.003+03:00

Alex Stone Sweet (Yale University) has posted a working paper on ssrn entitled 'A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe'. The paper deals with the ECHR as a cosmopolitan legal order. This is the abstract:

The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a transnational legal system in which all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction. The emergence of the system depended on certain deep, structural transformations of law and politics in Europe, including the consolidation of a zone of peace and economic interdependence, of constitutional pluralism at the national level, and of rights cosmopolitanism at the transnational level. Framed by Kantian ideas, the paper develops a theoretical account of a cosmopolitan legal system, provides an overview of how the ECHR system operates, and establishes criteria for its normative assessment.

ECHR Articles in Newest HRLR

2011-08-25T13:01:00.003+03:00

The most recent issue of the Human Rights Law Review (Vol. 11, No. 3, September 2011) includes a number of articles relating to the European Convention on Human Rights:

* Dominic McGoldrick, 'Religion in the European Public Square and in European Public Life—Crucifixes in the Classroom?'.

* Elizabeth Wicks, 'A, B, C v Ireland: Abortion Law under the European Convention on Human Rights'.

* Stephen Skinner, 'The Right to Life, Democracy and State Responsibility in ‘Urban Guerilla’ Conflict: The European Court of Human Rights Grand Chamber Judgment in Giuliani and Gaggio v Italy'.

* Paul Johnson, 'Homosexuality, Freedom of Assembly and the Margin of Appreciation Doctrine of the European Court of Human Rights: Alekseyev v Russia'.

My New Book on Transitional Jurisprudence and the ECHR

2011-08-24T10:21:00.003+03:00

It is my great joy to announce that a book edited by my good friend Michael Hamilton (Central European University & Ulster University) and myself, entitled 'Transitional Jurisprudence and the ECHR. Justice, Politics and Rights' has just been published by Cambridge University Press. After three years of work from initial idea to this final product, we are grateful for the contributions of many. This is the product of a cooperative research project on this theme between researchers from SIM at Utrecht University, Ulster University, Durham University, American University, and New York University. The foreword was written by Ruti Teitel. This is the abstract:

The European Convention on Human Rights has been a standard-setting text for transitions to peace and democracy in states throughout Europe. This book analyses the content, role and effects of the jurisprudence of the European Court relating to societies in transition. It features a wide range of transitional challenges, from killings by security forces in Northern Ireland to property restitution in East Central Europe, and from political upheaval in the Balkans to the position of religious minorities and Roma. Has the European Court developed a specific transitional jurisprudence? How do politics affect the ways in which the Court's judgments are implemented? Does the Court's case-law itself become woven into narratives of struggle in transitional societies? This book seeks to answer these questions by highlighting the unique role of Europe's main guardian of human rights, the Court in Strasbourg. It includes a comparison with the Inter-American and African human rights systems.

And this is the table of contents:

1. Introduction, Michael Hamilton and Antoine Buyse
2. Transitional emergency jurisprudence: derogation and transition, Fionnuala Ní Aoláin
3. Rights and victims, martyrs and memories: the European Court of Human Rights and political transition in Northern Ireland, Kris Brown
4. The ECHR and transition: confronting the consequences of authoritarianism and conflict, Christopher Lamont
5. Freedom of religion and democratic transition, James Sweeney
6. The truth, the past and the present: Article 10 of the ECHR and situations of transition, Antoine Buyse
7. Transition, political loyalties and the order of the state, Michael Hamilton
8. Transition, equality and non-discrimination, Anne Smith and Rory O'Connell
9. Closing the door on restitution: the European Court of Human Rights, Tom Allen and Benedict Douglas
10. The inter-American human rights system and transitional processes, Diego Rodriquez-Pinzon
11. The 'transitional' jurisprudence of the African Commission on Human and Peoples' Rights, Gina Bekker
12. Conclusions, Antoine Buyse and Michael Hamilton.

Hopefully enjoy reading!

Summer Harvest of Academic Articles

2011-08-23T18:31:00.003+03:00

Please find below the "summer harvest" of academic articles published about the European Convention on Human Rights in the past few months in a wide variety of academic journals, in no particular order:

* M. Milanovic, 'Applicability of the ECHR to British soldiers in Iraq', Cambridge Law Journal (vol. 70, no. 1, 2011).

* S. Briant, 'The requirements of prisoner voting rights: mixed messages from Strasbourg', Cambridge Law Journal (vol. 70, no. 2, 2011).

* W. Wu, 'Interrogational fairness under the European Convention on Human Rights', International Journal of Law, Crime and Justice (vol. 39, no. 1, 2011).

* W. Weiss, 'Human rights in the EU: Rethinking the role of the European Convention of Human Rights after Lisbon', European Constitutional Law Review (vol. 7, no. 1, 2011).

* E. Brems, 'Transitional justice in the case law of the European Court of Human Rights', International Journal of Transitional Justice (vol. 15, no. 2, 2011).

* S. Ast, 'The Gäfgen judgment of the European Court of Human Rights: on the consequences of the threat of torture for criminal proceedings', German Law Journal (vol. 11, no. 12, 2010).

* G. Merkel, 'Retrospective preventive detention in Germany: a comment on the ECHR decision Haidn v. Germany', German Law Journal (vol. 12, no. 3, 2011)

Three articles in the Journal of International Criminal Justice (vol. 9, no. 3, 2011):

* W.A. Schabas, 'Synergy or Fragmentation?: International Criminal Law and the European Convention on Human Rights'.

* O. de Frouville, 'The Influence of the European Court of Human Rights’ Case Law on International Criminal Law of Torture and Inhuman or Degrading Treatment'.

* D. Scalia, 'Long-Term Sentences in International Criminal Law: Do They Meet the Standards Set Out by the European Court of Human Rights?'.

Three articles in the Tulane Journal of International and Comparative Law (vol. 19, no. 2, 2010/2011):

* M. Volzhskaya, 'Kononov v. Latvia: a partisan and a criminal - the European Court of Human Rights takes a controversial stance on war crimes'.

* K. Brudy, 'S.H. v. Austria: European Court of Human Rights holds that the rights to family life and sexism trump governmental limitations on artificial procreation'.

* T. Rich, 'Sanoma uitgeveers v. Netherlands: the European Court of Human Rights forges new ground for the right of journalists to protect their sources'.

Filtering Section at Court

2011-08-22T10:54:00.003+03:00

More news that might have escaped attention during the summer: the Court itself reports that its new filtering section, set up in the wake of Interlaken and Protocol 14, to assign in the most efficient way incoming applications to the right formation of judges, seems to be working efficiently, and has started to save time already. It deals with applications directed against five of the countries with the highest case-number: Russia, Turkey, Romania, Ukraine and Poland. This is the full press release from the Court's website:

Filtering Section speeds up processing of cases from highest case-count countries
One of the main challenges facing the Court is the efficient filtering out of the very large number of inadmissible cases brought before it each year. It is estimated that up to 90% of the cases coming into the Court’s Registry are found to be inadmissible. Over the years the Court has progressively streamlined this stage of its procedure, but further impetus to this process was given by the entry into force of Protocol No. 14 and the establishment of the Single Judge formation. This meant that a Judge sitting alone, assisted by a Non-Judicial Rapporteur, could declare applications inadmissible, whereas previously three Judges had been required. With a view to making the most of this new procedure and encouraged to innovate in this area by the Inter-Governmental Conference at Interlaken in February 2010, the Court has set up a new Filtering Section centralising the handling of the incoming cases from five of the highest case-count countries: Russia, Turkey, Romania, Ukraine and Poland. These countries account for over half of the cases pending before the Court.
The Filtering Section has been in operation since the beginning of 2011. Its principal function is to carry out a thorough, accurate and immediate sifting of cases to ensure that all applications are placed on the appropriate procedural track, whether submitted to a Single Judge for prompt decision or sent to await examination by a Committee of three judges or Chamber in accordance with the Court’s priority policy. By centralising resources and streamlining working methods, it is intended to minimise the time taken to respond to applicants’ complaints and to reduce the backlog of unexamined cases.

After six months it is already clear that the creation of the Filtering Section has led to the development and sharing of best practices which have helped to speed up the administrative and legal processing of the incoming complaints.

By the end of June 2011, the Filtering Section had recorded 21,859 new applications. During the same period, 11, 369 applications against five States were dealt with by a Single Judge. This is an increase of 42 % compared with 2010.

The Filtering Section is able to sift and place on the right procedural track all the incoming applications. For Ukraine and Poland, all cases identified for treatment by Single Judge are being dealt with immediately. For Romania, the percentage of Single Judge cases dealt with immediately is more than 90%. For Russia and Turkey, the Filtering Section is able to deal with roughly 75% of the Single Judge cases.

Further modifications in organisation and procedure are envisaged in the second half of 2011 to improve efficiency still further.

Article on Judicial Tactics in the European Court

2011-08-19T16:38:00.002+03:00

Shai Dothan of Tel Aviv University has written an article entitled 'Judicial Tactics in the European Court of Human Rights' which has been published in the Chicago Journal of International Law (vol. 12, no. 1, 2011, p. 115) and is available for free on SSRN.

The European Court of Human Rights (ECHR) has been criticized for issuing harsher judgments against developing states than it does against the states of Western Europe. It has also been seen by some observers as issuing increasingly demanding judgments. This paper develops a theory of judicial decision-making that accounts for these trends. In order to obtain higher compliance rates with the judgments that promote its preferences, the ECHR seeks to increase its reputation. The court gains reputation every time a state complies with its judgments, and loses reputation every time a state fails to comply with its judgments. Not every act of compliance has the same effect on the reputation of the court, however. When the judgment is costlier, the court will gain more reputation in the case of compliance. In an effort to build its reputation, in some cases the court will issue the costliest judgment with which it expects the state to comply. Since the ECHR receives high compliance rates, its reputation increases, which leads it to issue costlier judgments. The court restrains itself when facing high-reputation states that can severely damage its reputation by noncompliance or criticism, so it demands more from low-reputation states.

New Book on European Court Between Law and Politics

2011-08-18T09:23:00.002+03:00

Jonas Christoffersen and Mikael Rask Madsen, of the Danish Institute for Human Rights and of the University of Copenhagen respectively, have edited the book 'The European Court of Human Rights between Law and Politics', now published by OUP. This is the abstract:

The European Court of Human Rights between Law and Politics provides a comprehensive analysis of the origins and development of one of the most striking supranational judicial institutions. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and ongoing political reform of the Court. The broad analysis based on historical, legal, and social science perspectives provides new insights into the institutional crisis of the Court and identifies the lessons that can be learned for the future of the European Convention on Human Rights and Fundamental Freedoms.

The European Court of Human Rights is in many ways is an unparalleled success. The Court embarked, during the 1970s, upon the development of a progressive and genuinely European jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from 47 different countries, the European system is once again deeply challenged - this time by a massive case load and by the Member States' increased reluctance towards the Court. This book paves the way for a better understanding of the system and hence a better basis for choosing the direction of the next stage of development.

New Instructions and Statistics on Interim Measures

2011-08-16T15:47:00.004+03:00

Responding to the earlier reported high rise in requests for interim measures, the Court has recently issued new instructions on such measures. They specifically relate to request concerning suspension of expulsions, which take up a big part of the total number of such requests. The instructions specifically indicate that the requests should include specifics and should be timely. They also indicate that they should be sent by fax or post, not email (sic!). In order to avoid problems with timing, lawyers of applicant are requested to keep a watchful eye. For example:

Where the final domestic decision is imminent and there is a risk of immediate enforcement, especially in extradition or deportation cases, applicants and their representatives should submit the request for interim measures without waiting for that decision, indicating clearly the date on which it will be taken and that the request is subject to the final domestic decision being negative.

The Court re-emphasizes that it is not an appeal tribunal for domestic courts.

The Court has also published specific statistics on the decisions on interim measures in the first half (1 January to 30 June) of 2011. These statistics clearly show that of the over 1250 decisions by the Court on requests for interim measures on expulsions, only approximately 20% were positive - that is, accepting the request. Between the lines of the charts the message seems to be: chances of success are not too big. The statistics show both from which ECHR state parties the requests originated (i.e. applicants complaining against those countries) and the states to which expuslion was due. They show that of the accepted requests, the number one country to which expulsion was looming is a ECHR state party itself: Greece. The M.S.S. v. Belgium and Greece case of January thus has had immediate effects on practice. The only two other ECHR state parties featuring in that same list are Russia and Italy. For anyone following refugee and migratory patterns, it may not come as a surprise that Iraq and Afghanistan feature in the top 5 - both of accepted and of refused requests for measures by the way. Such statistics will be published every six months from now on.

Both the new instructions and the statistics are part of a larger move of the Court to increase the level of specific and accessible information, especially to applicants and their lawyers. More information, it is assumed, will make people think twice before launching themselves in a Strasbourg legal adventure. Such attempts have their limits, however - Strasbourg can only do so much. The probability of success hinges to a much greater degree on national education and information initiatives and eventually on national steps to strengthen human rights protection. In any event, these new instructions will certainly not be the end of the story.

New Edition of Taking a Case to the European Court of Human Rights

2011-08-15T14:24:00.003+03:00

A brand new edition of the very accessible and practical (and elaborate) book 'Taking a Case to the European Court of Human Rights' by Philip Leach has just been published at Oxford University Press. Leach is both an academic - professor at London Metropolitan University - and a practitioner - director of the European Human Rights Advocacy Centre (EHRAC) through which he and his team have assisted many applicants at the European Court of Human Rights with legal advice. This is the abstract:

Now in its third edition, Taking a Case to the European Court of Human Rights is written by an experienced human rights practitioner. It provides practical and accessible guidance on taking cases to the European Court of Human Rights. It incorporates a step-by-step approach to the litigation process, covering areas such as lodging the initial application, legal aid, costs, interim measures, friendly settlement, third party intervention, just satisfaction, enforcement of judgments, and Grand Chamber referrals.

An explanation of the key principles underlying the European Convention on Human Rights precedes an expanded and up-to-date article-by-article commentary on the substantive law of the European Convention, including derogation, reservation, and damages. The new edition has been fully revised to take account of the changes introduced by Protocol 14 in 2010.

The book includes key substantive case law developments, commentary and guidance on the amended Court rules and new practice directions, and recent changes in the Court's processing of cases, together with advice and information on drafting pleadings, fact-finding and merits hearings before the Court.

The Court's admissibility criteria, a critical aspect of the Convention system, are dealt with in detail, and a comprehensive set of Court forms and other precedents are included in the appendices.

A valuable tool for practioners and recommended by the current president of the Court, who referred to it as "a practical guide to the Convention system, Philip Leach's book has proved itself to be indispensable. The new edition of the book should find an immediate place on the shelves of any practitioner contemplating bringing an application to the Court."

Summer Break

2011-07-20T16:44:00.003+03:00

Dear readers, I am taking a summer break. No posting for the coming weeks. I will be back in the second half of August. Enjoy your summer, with or without the European Convention!

Factsheet on Extraterritorial Jurisdiction

2011-07-18T12:20:00.004+03:00

For those who like summertime puzzles, the Court has now published a factsheet on its website on "Extra-territorial jurisdiction of ECHR States". It contains the most important decisions and judgments on extraterritoriality of the ECHR of both the former Commission of Human Rights and the Court. The recent Al-Skeini and Al-Jedda judgments have been included. When reading through these very short summaries, one realises once more that the conundrum of possibilities has not found definitive answers yet. And even for those who do solve the puzzle of possible contradictions, the factsheet indicates that "This factsheet is not exhaustive and does not bind the Court".

The full list of factsheets, several of which have been added or updated in the past few months, can be found here.

Strasbourg Consortium on Freedom of Conscience and Religion

2011-07-15T15:49:00.003+03:00

As a particular niche for Strasbourg watchers, let me refer you to a anotehr website: the Strasbourg Consortium. It is a network of academic institutions interested in the issue of freedom of conscience and religion at the European Court of Human Rights. It has regular update on news in this area. The site contains reports and a small collection of commentaries on cases, a bibliography on the topic, and updates on conferences and meetings on the freedom of conscience and religion. One can register to stay updated. A valuable resource for all Article 9 ECHR-related issues!

Working Paper on Interim Measures

2011-07-14T12:12:00.003+03:00

My friends and colleagues Yves Haeck, Clara Burbano Herrera, and Leo Zwaak (of Ghent and Utrecht University) have just posted a working paper on SSRN on the issue of interim measures of the European Court, on which they are specialists. The paper is entitled "Strasbourg’s Interim Measures Under Fire: Does the Rising Number of State Incompliances with Interim Measures Pose a Threat to the European Court of Human Rights?" and will later appear in this year's volume (2011) of the European Yearbook on Human Rights. This is the abstract:

Being a daily working tool for the European Court of Human Rights to prevent irreparable damage to persons in a situation of extreme gravity and urgency, and thus to potential victims of violations of a right or freedom under the European Convention, ‘interim measures’ have over time acquired a growing importance in the Court’s case-law. Indeed, currently interim measures play a key role in many cases that are brought before Strasbourg. Nonetheless, States, when faced with such measures requiring them to act, sometimes refuse to abide by them. This contribution aims to give an overview of recent State incompliances. It is argued that their number, both with regard to terrorism-related and non-terrorism-related cases is steadily growing, as is the number of perpetrators, not only among the ‘new’ Member States, but also among the ‘older’ Member States and even the ‘founding fathers’ of the Council of Europe, and that this can have a negative effect on the supervisory system as a whole. Some initiatives can, however, be taken by the European Court itself and the Committee of Ministers to improve and streamline the procedure with regard to interim measures, whereby all actors in the dispute may benefit.

New Articles on ECHR

2011-07-13T15:07:00.002+03:00

The most recent issue of the Inter-American and European Human Rights Journal is out now (vol. 3, Nos. 1-2, 2010). It includes a number of articles that directly relate to the European Convention on Human Rights. These are:

* Marc Bossuyt, 'Judges on Thin Ice: The European Court of Human Rights and the Treatment of Asylum Seekers';

* Jochen Moerman, 'A Critical Analysis of the Prohibition of Slavery and Forced Labour Under Article 4 of the European Convention of Human Rights';

* Clara Burbano Herrera, ''SOS European Court of Human Rights': Protocol No. 14 bis Urgently Reforms the Institutional Framework While Awaiting the Entry into Force of Protocol No. 14'.

Paper on Rozakis' Separate Opinions

2011-07-12T10:18:00.003+03:00

George Letsas of University College London has posted a working paper on SSRN on the separate opinions of Greek ECtHR judge Rozakis. It's entitled 'Judge Rozakis's Separate Opinions and the Strasbourg Dilemma'. This is the abstract:

Separate opinions in the European Court of Human Rights have been pivotal for the development of the Court's jurisprudence and for shaping the Court's judicial style. The paper focuses on the separate opinions of the Vice-President of the Court, judge Christos Rozakis. It shows that judge Rozakis's separate opinions have consistently urged for substantive scrutiny of the necessity of state interference with the applicant's rights, while being critical of granting states a margin of appreciation. The paper argues that Rozakis's critique of the margin of appreciation, as found in his separate opinions, will be one of the Court's most important legacies in the years to come.

Swiss Minaret Decisions

2011-07-11T13:19:00.005+03:00

Ever since 2009 when the Swiss people voted, through a referendum, to include in their Constitution a general ban on building minarets, it was to be expected that the European Court of Human Rights would be called upon sooner or later to express itself on the compatibility of such a ban with the ECHR. Last week produced an inconclusive intermediate step. In two almost identical admissibility decisions the Court declared a number of complaints by Swiss Muslim organisations and the former spoekesman for the Geneva mosque inadmissible. The Court concluded that none of the applicants could be seen as a victim of the ban. The cases, Ouardiri v. Switzerland and Ligue des Musulmans de Suisse and Others v. Switzerland (both in French only) read as short but detailed treatises on the victim requirement in the ECHR. The press release in English can be found here. It is also available in German.

The Court held that the applications amounted to an actio popularis, which the Strasbourg system does not allow for. The applicants were not direct victims nor indirect (such as for example the family of a deceased person can sometimes be). They had not shown, according to the Court, that they were themselves affected by the ban - none had argued to plan to build a minaret. Nor could they be seen as potential victims in the Court's view. The notion of 'potential victim' is only exceptionally used in Strasbourg. A classic example is the Dudgeon case of 1981: a homosexual man in Northern Ireland complained about legislation criminalising acts between male adults. Even though he had not been convicted himself, the Court in that case held that the legislation forced him to change his behavior and therefore affected him. In all cases the Court requires some kind of link between the applicant and the prejudice he or she claims to have suffered. The Court's application of this principle to the particular case may not be entirely surprising, but is not uncontested. It distinguished Mr Ouardiri's case for example from cases criminalising homosexual behavior not only on the ground that the minaret ban does not criminalise behavior but also on the ground that it is not prone to influence the applicant's behavior who remains free to exercise his islamic religion. Nolens volens, the Court here indirectly makes an assessment of what falls within the scope of exercising one's islamic religion: having a minaret from which the muezzin calls the faithful to the mosque to pray does not fall within that ambit apparently. This may be a defensible assessment, but it is a stance nonetheless. Another point is that the discrimination aspect is barely touched upon as a result of the angle from which the Court approached the cases. Let us suppose that the Swiss would have voted for a ban on Muslims or non-whites to marry other Swiss (again without criminalising, but just making it practically impossible). Would the Court then still declare applications inadmissible until an applicant had professed direct plans to marry? Difficult issues ...

One may note, by the way, that the decision was taken by a majority of votes. Apparently the seven judges of the second section of the Court could not agree. It's a pity all the more that admissibility decisions never include separate opinions.

Obviously the issue may return to Strasbourg, once there will be an applicant whose concrete request to build a (mosque with) minaret was formally refused by the Swiss authorities. But the whole battle may be fought in Swiss courts themselves. To be continued, no doubt!

Long Awaited Al-Skeini and Al-Jedda Judgments Delivered

2011-07-07T13:06:00.005+03:00

Today, the Grand Chamber of the European Court of Human Rights delivered its long awaited judgments in the cases of Al-Skeini and others v. the United Kingdom and Al-Jedda v. the United Kingdom. The first case concerned civilians killed during British security operations in Iraq. The second case was about the the internment of an Iraqi for more than three years in a detention centre in Basrah which was run by British forces.

In a nutshell, the Court held that both situations fell within the United Kingdom's jurisdiction, and it found violations of the procedural duties under the right to life in the first case (on which the Court did hold that it had to applied realistically, considering the breakdown of almost everything in post-Saddam Iraq)and of the right to liberty in the second one.

An important set of cases in many respects: on human rights obligations of armed forces, on the extraterritorial reach of the ECHR, on the relationship with UN Security Council decisions and on the attribution of responsiblity under international law. In Al-Jedda for example, the Court distinguished the Iraqi situation from the one in Kosovo holding that "the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force." Thus it held the UK to account (contrary to cases against other European countries in the Kosovo situation). Food for thought and for a lot of academic and politico-military discussion to follow, no doubt!

Once again, let me point to an, as ever, well-phrased concurring opinion of Judge Bonello, of which I will only cite the very last part here:

37. I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.

38. Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.

39. I, for one, advertise my diversity. At my age, it may no longer be elegant to have dreams. But that of being branded in perpetuity a human rights imperialist, I acknowledge sounds to me particularly seductive.

Press releases on the two cases can be found on the website of the Court.

Please also read the - as ever - insightful comments of Marko Milanovic on EjilTalk!

New Academic Articles on ECHR

2011-07-07T10:54:00.003+03:00

Please find below a new batch of ECHR-related readings for the summer:

* J. Lapitskaya, 'ECHR, Russia, and Chechyna: two is not company and three is definitely a crowd', New York University Journal of International Law and Politics, vol. 43, No. 2 (2010/2011) pp. 479-548.

* J. Chevalier-Watts, 'The phenomena of enforced disappearances in Turkey and Chechnya: Strasbourg’s noble cause?' Human Rights Review, vol. 11, no. 4 (2010) pp. 469-489.

The paper critically reviews the challenges facing the European Court of Human Rights when hearing claims being brought under Article 2 of the European Convention on Human Rights in relation to the phenomena of enforced disappearances as a result of the internal armed conflicts of Turkey and Chechnya. The paper traces the phenomenal and, oftentimes, controversial evolution of the associated jurisprudence and provides evidence of judicial disparities and inconsistencies that are not easily rationalised. Such inconsistencies suggest that whilst Strasbourg’s intention may be to ensure accountability in the face of adversity and human atrocities, its noble cause may be based on judicially unsubstantial foundations.

And in the same issue :

* R. Nigro, 'The margin of appreciation doctrine and the case-law of the European Court of Human Rights on the islamic veil', pp. 531-564.

In its judicial activity, the European Court of Human Rights increasingly resorts to the margin of appreciation doctrine as a means of granting States the discretionary power to adopt, both positive steps to comply with the European Convention on Human Rights and steps which, although interfering with some of the rights and freedoms sanctioned by it, are considered to be justifiable because they are necessary to preserve public order and/or to protect the rights and freedoms of others in a democratic society. However, the margin of appreciation doctrine does not appear in the text of the European Convention or in its drafting history.1 This is the reason why, on several occasions, legal scholarship has examined the legal basis of such doctrine and questioned the consequences of the use the European Court makes of it within the protection of the human rights system. Manifold theories have thus been put forward justifying the Court’s recourse to the discretionary power of States. As we shall illustrate, these theories offer only a partial, yet insufficiently clear, explanation of the margin of appreciation doctrine. This is apparent in the European Court’ case-law on the Islamic veil—lastly in the recent admissibility decisions of 30 June 2009 in Aktas v. France, Bayrak v. France, Gamaleddyn v. France and Ghazal v. France—in which the power granted to some State authorities to ban the headscarf, seems to have been used by the Strasbourg judges to set general principles, in a manner and for purposes that are incompatible with the discretionary powers of States. Before analysing the margin of appreciation doctrine in the European Court’s jurisprudence on the Islamic veil, we should briefly analyse the most significant judgments through which the Court has set the enforcement criteria of the margin of appreciation; and the main theories in legal academic literature, in order to better understand how the approach followed in the case-law on the Islamic veil draws away from both the previous jurisprudence of the Court and the scholars’ contributions and comments on the subject.

For more recent human rights articles, see the newest 'current contents' selection of the Netherlands Institute of Human Rights (SIM).

Nicholas Bratza Elected Court President

2011-07-05T16:15:00.004+03:00

Yesterday, the European Court of Human Rights elected Sir Nicholas Bratza as its new president. When the term of the current president, the French judge Costa, ends at the beginning of November, Bratza will succeed him in that position. The 66-year old Bratza is by far one of the most experienced judges in Strasbourg. He has been a juge at the Court ever since it became a fulltime Court in 1998. and before that, he had served as a member of the European Commission of Human Rights between 1993 and 1998. Bratza was section president between 1998 and 2000 and has been in that function for the second time ever since 2001. Since 2007 he has also been vice-president of the Court. He was elected in the position of president by his fellow judges in a secret ballot.

Bratza in many ways is a true European, with a Serbian father (famous violinist Milan Bratza) and an English mother. Several newspapers yesterday and today pointed to the fact that there might be political considerations for electing the British judge as president. After all, the United Kingdom is probably the country where debates about the Court are currently most vehement. Although it may be a nice coincidence that the external face of the Court is British, I think experience and seniority weighed more heavily in the minds of the judges when they had to cast their vote. With his extensive experience, Sir Nicholas is simply one of the judges with the largest institutional memory. With an ever-expanding case-load, that is a very welcome thing in order to ensure coherence and to avoid reinventing the wheel all the time.

Re-reading an old interview with Bratza in the British newspaper the Daily Telegraph in 2003, one sees that the Telegraph had some foresight as it claimed that Bratza "stands a good chance of becoming president in the future - if he is prepared to give up some of his casework for the more high-profile responsibilities of the most senior judge, such as lobbying member states to support essential reforms." An Op-Ed in the Guardian of last February also argued Bratza's case.

German Book on Pilot Judgments

2011-06-30T09:43:00.006+03:00

A new book (in German) on the topic of pilot judgments has been published. Jörn Eschment has written Musterprozesse vor dem Europäischen Gerichtshof für Menschenrechte. This is the abstract:

Ende 2009 waren beim Europäischen Gerichtshof für Menschenrechte rund 120.000 Beschwerden anhängig. Großen Anteil an dieser Beschwerdeflut haben massenhafte Parallelverfahren, also tatsächlich und/oder rechtlich gleichgelagerte Fälle, die in strukturellen Dysfunktionen der nationalen Rechtsordnungen wurzeln. Als Reaktion auf die zunehmende Arbeitsbelastung durch Parallelverfahren hat der Gerichtshof bereits im Jahr 2004 völker(verfahrens)rechtliches Neuland betreten und erstmals ein Piloturteilsverfahren eingeleitet. Seither haben die Straßburger Richter mehrfach und in verschiedenen Varianten auf diese neue Verfahrensweise zurückgegriffen. Gleichwohl ist deren Entwicklungsstand bis dato allenfalls als embryonal zu bezeichnen. Die Arbeit untersucht Theoriehttp://www.blogger.com/img/blank.gif und Praxis solcher Musterverfahren und lotet ihre Probleme und Perspektiven als prozessuale Strategie im Kampf gegen Parallelverfahren aus.

For more on pilot judgments, see also:

* Philip Leach and others, 'Responding to Systemic Human Rights Violations'.
* And my own: 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' on SSRN.

Article on European Consensus in Public Law

2011-06-29T10:52:00.005+03:00

The article 'Does consensus matter? Legitimacy of European Consensus in the Case Law of the ECtHR' by Kanstantsin Dzehtsiarou has just been published in Public Law (July 2011 issue, pp. 534-553). I reported on the working paper earlier here. This is, in short, what the article is about:

International tribunals including the European Court of Human Rights (“ECtHR”) face a substantial structural handicap: they operate in a system which lacks the coercive force to enforce their judgments. Thus, to at least some extent, the execution of their judgments depends on them issuing rulings that are considered legitimate by reference to the method of their reasoning. One of the methods of reasoning commonly applied by the ECtHR is that of “European consensus”; an argument based on comparative analysis. While “European consensus” is used by the court, the Convention itself does not contain any definition, criteria or regulation of the concept. Moreover, the ECtHR has not clearly defined what it means by European consensus and it has not been analysed systematically in academic work.

This paper argues that European consensus as employed by the ECtHR is a legitimising tool, but that its potential can be unlocked only if the court clearly states its meaning and application. It is a legitimising method of reasoning because it brings clarity and foreseeability to case law in relation to almost all Convention rights, although it has never been the sole basis of a judgment and therefore plays a subsidiary, albeit important, legitimising role.

Part one considers the general framework for the analysis of legitimacy. It addresses general concepts of legitimacy and considers the factors that are relevant in the assessment of the legitimacy of an argument the ECtHR incorporates in its reasoning. It is suggested that European consensus should be sufficiently persuasive and procedurally clear if it is to enhance legitimacy. Part two deals with the crisis of legitimacy relative to European consensus that has been articulated by some
commentators. It identifies those weak points that can be mitigated through clarity and transparency of the court's reasoning. Part three defines the European consensus as it is used by the European Court. The logic that is used by the court in identification of consensus is used by national and international tribunals all over the World. This part outlines and analyses the different types of consensus considered by the ECtHR.

PACE Calls for More Active Role of National Parliaments

2011-06-28T15:19:00.003+03:00

The implementation gap between standards and practice is a recurring issue - and rightly so - in discussions on human rights, also in the context of the ECHR. One way to increase correct and more speedy implementation is to activate national parliaments. This is what the Parliamentary Assembly (composed of national parliamentarians) emphasized in a resolution (no. 1823) adopted last week, entitled 'National parliaments: guarantors of human rights in Europe'. This is the text of the resolution:

1. The Parliamentary Assembly recalls that Council of Europe member states are responsible for the effective implementation of international human rights norms they have signed up to, in particular those of the European Convention on Human Rights (ETS No. 5) (hereafter "the Convention"). This obligation concerns all state organs, whether executive, judicial or legislative.

2. National parliaments are often overlooked in this context. Their potential needs to be further explored. They are key to the effective implementation of international human rights norms at national level and fulfil their duty to protect human rights through legislating (including the vetting of draft legislation), involvement in the ratification of international human rights treaties, holding the executive to account, liaising with national human rights institutions and fostering the creation of a pervasive human rights culture.

3. The members of the Assembly, having a double mandate – as members of the Assembly and of their respective national parliaments – are under a particular duty to contribute to such action.

4. The Assembly notes that the United Nations “Paris Principles” of 1993 have become the internationally accepted benchmark for core minimum standards for the role and functioning of independent national human rights institutions; similar benchmarks should be drawn up for parliamentary bodies.

5. With respect to the implementation of judgments of the European Court of Human Rights (hereafter "the Court"), the Assembly:

5.1. believes that national parliaments are uniquely placed to hold the governments to account for swift and effective implementation of the Court’s judgments, as well as to swiftly adopt the necessary legislative amendments;

5.2. regrets that the post-Interlaken debate on the future of the Convention system does not sufficiently take into account the potentially important role of parliaments and deplores the silence of the Izmir Declaration in this respect;

5.3. points to the positive examples in several member states, notably the United Kingdom, the Netherlands, Germany, Finland and Romania, which have set up parliamentary structures to monitor the implementation of the Court’s judgments.

6. Furthermore, the Assembly:

6.1. encourages parliamentarians to monitor the determination and enforcement of human rights standards by the domestic judicial and administrative authorities;

6.2. urges parliamentarians to exercise their responsibility to carefully scrutinise the executive in their countries when it comes to the implementation of, in particular, international human rights norms;

6.3. calls on governments to involve national parliaments in the negotiation process of international human rights agreements and in the process of implementation of judgements of the European Court of Human Rights;

6.4. calls on all member states to provide for adequate parliamentary procedures to systematically verify the compatibility of draft legislation with Convention standards and avoid future violations of the Convention, including regular monitoring of all judgments which could potentially affect the respective legal orders;

6.5. urges parliaments to step up their efforts in contributing to the supervision of the Court’s judgments by overseeing steps taken by the competent authorities to execute adverse judgments, including scrutiny of the actual measures taken;

6.6. calls on parliaments to set up and/or to reinforce structures that would permit the mainstreaming and rigorous supervision of their international human rights obligations, on the basis of the principles below.

7. The Assembly therefore invites parliaments to implement the following basic principles for parliamentary supervision of international human rights standards.

Basic principles for parliamentary supervision of international human rights standards

1. Appropriate framework and responsibilities

National parliaments shall establish appropriate parliamentary structures to ensure rigorous and regular monitoring of compliance with and supervision of international human rights obligations, such as dedicated human rights committees or appropriate analogous structures, whose remits shall be clearly defined and enshrined in law.

These remits should include, inter alia:

– the systematic verification of the compatibility of draft legislation with international human rights obligations;

– the requirement for governments to regularly submit reports on relevant judgments of the European Court of Human Rights and their implementation;

– the initiation of legislative proposals and amendments to laws;

– subpoena powers over witnesses and documents concerning their remit;

Such committees shall have the responsibility to ensure that parliaments are properly advised and informed on human rights issues. Human rights training should also be provided for parliamentarians and their staff;

2. Independent advice

Human rights committees or appropriate analogous structures shall have access to independent expertise in human rights law.

Adequate resources shall also be made available to provide specialised secretariat support.

3. Co-operation with other institutions and civil society

Co-operation and regular dialogue shall be maintained, as appropriate, with relevant national (for example, national human rights institutions, parliamentary commissioners), and international bodies (for example, the Parliamentary Assembly, the Council of Europe Commissioner for Human Rights, European and other international human rights monitoring bodies), as well as with representatives of well-established non-governmental organisations which have significant and relevant experience.

New French Judge Elected

2011-06-27T10:06:00.003+03:00

Last week, the Parliamentary Assembly of the Council of Europe elected a new judge in the Court in respect of France: Mr André Potocki. Potocki received 110 out of 160 votes cast. He will succeed judge Costa, the current judge elected in respect of France, on 4 November 2011. Potocki has been elected for a term of nine years. Who will succeed Costa as president of the Court is, to my knowledge, not yet known.

Potocki, born in 1950, is currently a judge at the French Court of Cassation (in the commercial section!). He was also, shortly, a judge at the Court of First Instance of the European Communities. The expertise gained in the latter function may be very useful in the context of the pending accession of the European Union to the ECHR. His particular expertise in human rights is fairly limited. The CV only indicates that he was a member of the French committee re-examining a criminal decision further to a judgment of the European Court of Human Rights. For his full CV, see here.

The three French candidates were selected by a national committee following an open call for applications - a method which an increassing number of ECHR state parties have opted for in the past few years.

The Convention: a Beanstalk or a Tree?

2011-06-20T14:48:00.004+03:00

Baroness Hale of Richmond, justice at the Supreme Court of the United Kingdom, delivered a lecture last Thursday with the intriguing title 'Beanstalk or Living Instrument? How Tall Can the ECHR Grow?'. It is a nuanced call to the European Court of Human Rights to be prudent: to avoid the ECHR to be turned into an ever-growing beanstalk - as in the fairy tale. In the lecture, baroness Hale deals with the various ways in which the living instrument doctrine has taken shape over the years and connects this to the issues national courts have to deal with. Rather than a beanstalk, she argues that the Convention should better be compared to a tree: grwoing but simultaneously rooted in a sufficient degree of predictability. She ends with a cautionary note:

As a supporter of the Convention and the work of the Strasbourg Court, my plea to them is to accept that there are some natural limits to the growth and development of the living tree. Otherwise I have a fear that their judgments, and those of the national courts which follow them, will increasingly be defied by our governments and Parliaments. This is a very rare phenomenon at present and long may it remain so.

See also the coverage and comments at the UK Human Rights Blog.

Hat tip to EM!

EU Accession to the ECHR and the Election of Judges

2011-06-16T10:36:00.005+03:00

With the accession of the European Union to the ECHR on the horizon, negotiations are ongoing on several levels. One technical issue which needs to be worked out is how the EU wil be involved in the election of judges to the ECHR. Judges, under Article 22 ECHR, are elected by the Parliamentary Assembly of the Council of Europe (CoE). This is a body with parliamentarians from all CoE member states. Since the EU will not join the Council of Europe organization as a member, a special solution needs to be found for involvement of parliamentarians representing the EU in the process to select judges. This is currently under negotiation between Pace and the European Parliament. As a press release of this week indicates, agreement has been reached on some of the key points. The official text of the agreement is not yet finally drafted or public, but the press release includes the basics:

Statement by co-chairs of PACE-European Parliament joint informal body
The election of judges to the European Court of Human Rights following the EU’s accession to the European Convention on Human Rights: statement by co-chairs of PACE-European Parliament informal body

The co-chairpersons of the Parliamentary Assembly-European Parliament joint informal body, Christos Pourgourides (Cyprus, EPP/CD), Chairperson of the Assembly’s Committee on Legal Affairs and Human Rights, and Carlo Casini (Italy, EPP), Chairperson of the European Parliament’s Committee on Constitutional Affairs, issued the following statement at the end of the body’s meeting held in Paris on 15 June 2011:

"There was agreement that, following accession of the European Union to the European Convention on Human Rights, the European Parliament will be entitled to participate in the sittings of the Parliamentary Assembly of the Council of Europe and its relevant bodies when the latter exercises its functions related to the election of judges to the European Court of Human Rights, under Article 22 of the Convention.

There was further agreement that a European Parliament delegation, of a size equal to that of the biggest national parliamentary delegations, will participate in the election of judges by the Parliamentary Assembly. In particular, agreement has been reached as to the manner in which representatives of the European Parliament will take part and vote within the Assembly’s different bodies in the election process.

These arrangements must now be approved by the Parliamentary Assembly and the European Parliament, in accordance with their respective procedures.”

Op-Eds on the Court

2011-06-15T10:42:00.002+03:00

Colm O'Cinneide has posted an insightful blog article about the recent controversies in the United Kingdom about the Court on the UK Constitutional Law Group Blog, entitled 'In Defence of the Strasbourg Court'. And yesterday, the online version of the Guardian newspaper published my own Op-Ed on the European Court, which I am reposting here:

Is the European court of human rights (ECHR) a dangerous monster, constantly eyeing an endangered prey called national sovereignty? Or is it rather a beloved, benign and not particularly powerful protector of human rights? Anyone following the debates in the press and in parliament in the United Kingdom and in other European countries may get the impression that the court in Strasbourg is increasingly under attack.

Disputes over voting rights for prisoners, crucifixes in classrooms and abortion rights have all made the headlines recently. Is there reason for concern that the European court is nibbling away at the power of states to decide over their own future?

Observers of the Strasbourg court might wonder why, of all possible international organisations, the ECHR is deemed to be particularly threatening. Was it not set up for the good of all of Europe's citizens? Is it not the paramount shield of protection of all those whose fundamental rights are at risk? Such assurances will not placate the court's critics. However, two recent studies shed light on both the influence and the legitimacy of the court.

Research by US-based academics Laurence Helfer and Erik Voeten have addressed the first issue: influence. Does an international court such as the ECHR really influence national policies or does its jurisprudence merely reflect existing trends? Put differently, is it a follower of national legal changes rather than a trendsetter? Through a statistical analysis of one particular field of law – judgments on lesbian, gay, bisexual and transgender (LGBT) rights – they have found that there is evidence that Strasbourg judgments can help to push for changes at a national level.

If national constitutions allow for it, domestic judges can use ECHR case law in their own judgments to rule that specific national laws should no longer apply – for example, laws criminalising homosexual behaviour. The judgments of the European court can also provide information and encourage mobilisation domestically. Once the court issues a judgment, national NGOs can use that judgment to lobby their government for policy changes. If the European court rules that transsexuals have a right to have their gender change acknowledged on their birth certificates, for example, such a verdict gives credence and strength to a national lobby to effect such a change.

The ability of domestic judges to do this and the existence, will and effectiveness of lobby groups are national features rather than characteristics of the European court. It seems, therefore, that the jurisprudence of the ECHR is a catalyst increasing the speed of existing movements for change rather than igniting those changes. Instead of looking at the court as a danger, critics should look inward at the national constitutional system and existing movements and moods in their society.

What then about the legitimacy of the court? Do Europeans consider the Strasbourg institution to be a credible and legitimate protector of human rights? Is it eroding under the pressure of harsh discussions in some countries? Political scientist Başak Çalı and a team of researchers from University College London interviewed a large number of judges, lawyers and politicians in the UK, Ireland, Germany, Turkey and Bulgaria. They found that, in spite of some criticism, the ECHR generally enjoys a very high degree of legitimacy. In fact, judicial respect for the jurisprudence of the Strasbourg court is so strong that even the unpopularity of some of judgments does not significantly erode it. These academic projects show that the often hot-tempered political debates about the court and its judgments do not tell the full story.

Paper on ECHR and Extraterritoriality

2011-06-14T11:12:00.003+03:00

Barbara Miltner of the University of Cambridge has published a paper on Bepress on the extraterritorial application of the ECHR. It is entitled 'Revisiting Extraterritoriality: the ECHR and its Lessons' and connects the scope of the ECHR in Article 1 to the so-called 'colonial clause'. This is the abstract:

The extraterritorial scope of international human rights treaties has prompted vigorous debate in recent years. Much of this debate has focused on earlier developments in the European Court of Human Rights as well as the comparative jurisprudence of other international human rights treaties, with a particular focus on the concept of jurisdiction. This article refocuses the inquiry from a broad-spectrum comparative approach to an in-depth case study examining the complex interplay of factors influencing the extraterritorial application of the European Convention on Human Rights. While prior articles have focused nearly exclusively on its general jurisdiction clause, this paper recognises the equally significant contribution of a second, poorly understood treaty provision about which very little has been written. It goes on to examine the historical context and drafting history of these two key provisions prior to tracing what can be termed their irreconcilable jurisprudential evolution. What it reveals is a complex interaction between two provisions that defies facile characterization and militates against a one-size-fits all approach across human rights treaties.

Note that the paper still has a lot of track changes in it - hopefully that can be changed by the author soon in order to make the reading easier.

Loucaides on Cyprus

2011-06-10T17:42:00.003+03:00

Loukis Loucaides, former judge at the European Court of Human Rights, has written a short article about the Cypriotic case-law of the Court in the most recent issue of the Leiden Journal of International Law (vol. 24-2, 2011) pp. 435-465. The title of the article is 'Is the European Court of Human Rights Still a Principled Court of Human Rights After the Demopoulos Case?'. This is the abstract:

On 10 May 2001, the European Court of Human Rights delivered its judgment in the case of Cyprus v. Turkey pronouncing on the legal consequences of Turkey's invasion and occupation of the northern part of Cyprus since 1974. The Court found Turkey responsible for continuing violations of the right to the home and property of Greek-Cypriots. Invoking the Namibia principle, the Court found that remedies in the occupied part of Cyprus may be regarded as domestic remedies of Turkey and that the question of their effectiveness was to be considered in the specific circumstances in which it arises. On 1 March 2010, the Court decided that a Commission in the occupied area was a remedy that should be exhausted by the complainants for the above violations. Significant legal questions were determined relating to the effectiveness of this remedy with far-reaching consequences concerning the right to home and property as well as other aspects of human rights and international law.

Article 6 and Reasoned Verdicts

2011-06-07T16:22:00.002+03:00

The role of juries in criminal trials is probably one of the aspects which most facinates the general public. But how do jury decisions square with a defendant's wish to know on which grounds and considerations he or she has been found guilty? It is a recurring issue, which resurfaced in the case of Taxquet v Belgium last year. Paul Roberts of the University of Nottingham has addressed this topic in an article entitled 'Does Article 6 of the European Convention on Human Rights Require Reasoned Verdicts in Criminal Trials?', published in the latest issue of the Human Rights Law Review (Vol. 11, No. 2, 2011). This is the abstract:

This article revisits the controversial question whether Article 6 of the European Convention on Human Rights requires juries to give reasoned verdicts in criminal trials, in the light of the recent decision of the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium (2010). On the face of it, Taxquet reiterates the orthodox position elucidated in previous Strasbourg jurisprudence: the traditional common law jury delivering unreasoned general verdicts is in principle compatible with the right to a fair trial guaranteed by Article 6. On closer examination, however, the Grand Chamber's Judgment contains remarks and suggestions that could be construed as more threatening to the long-term future of the common law jury as it currently exists in the United Kingdom and in other Council of Europe member states. This realisation prompts broader critical reflections on: the authority and competence of the European Court of Human Rights; alternative approaches to interpreting Strasbourg jurisprudence and mediating its impact on domestic law; and the rationality and legitimacy of unreasoned jury verdicts in criminal adjudication.

The Economist's View on the Court

2011-05-31T10:03:00.003+03:00

Charlemagne, the European columnist of the Economist wrote an Op-Ed earlier this month on Europe's two highest Courts: Supreme muddle - Europe’s highest courts can be annoying, but they do more good than harm. The gist of the article is that even though the two, the ECJ and the ECtHR, might at times be annoying to politicans, on the balance it is good that we have them (sic!). The article is neither very positive, nor very negative. As Charlemagne says "Judicial nonsense should be restrained wherever possible but may be a price worth paying for the protection of Europe’s prosperity and freedom." Note the "may" in that latter sentence: not really a wholehearted statement of support!

Article on Children's Right to be Heard

2011-05-30T11:25:00.002+03:00

Aoife Daly of Trinity College Dublin has written an article on the rights of children in legal proceedings, entitled 'The right of children to be heard in civil proceedings and the emerging law of the European Court of Human Rights'. It was published in the third issue of volume 15 (2011) of the International Journal of Human Rights. This is the abstract:

The right of children to be heard in civil proceedings affecting them as enshrined by the Convention on the Rights of the Child is not expressly contained within the European Convention of Human Rights, nor has such a right been explicitly determined by the European Court of Human Rights. However considering the principles of evolutive interpretation, the positive obligations inherent within art. 6 and art. 8 as well as the case law on hearing children to date, it is to be argued that such a right can be derived under the Convention.

ECHR and Human Rights Violations in Chechnya

2011-05-26T11:34:00.002+03:00

The Journal of International Humanitarian Legal Studies, in its December 2010 issue, includes an article on remedies offered by the European Court to victims of the armed conflict in Chechnya. The article, written by Kirill Koroteev of the University of Strasbourg, is entitled 'Legal Remedies for Human Rights Violations in the Armed Conflict in Chechnya: The Approach of the European Court of Human Rights in Context'. This is the abstract:

The article discusses the efficacy of the remedies offered to successful applicants by the European Court of Human Rights in the cases coming from the armed conflict in the Chechen Republic of the Russian Federation. It submits, firstly, that proper establishment of facts constitutes a remedy in itself for victims of human rights violations in an armed conflict. It then analyses the establishment of facts by the Court in the Chechen cases and argues that the assessment of evidence under the Court's burden of proof 'beyond reasonable doubt' was applied unevenly in different cases. The paper suggests that the Court obtains evidence proprio motu, which it has never done in the Chechen cases. Secondly, this paper evaluates the European Court's practice to limit the just satisfaction by monetary awards and to consistently deny the applicants' requests for non-monetary awards. It then discusses the developments in the international law on reparations for human rights violations under the ECHR and in the Inter-American and UN systems, and argues for a need to enhance the European Court's awards of just satisfaction. Finally, the paper assesses the supervision of the execution of judgments in the Chechen cases, finds it ineffective, and suggests that more actions are required from the Court in order to deal effectively with alleged human rights violations arising from armed conflicts.

The Court and Changes at the Domestic Level

2011-05-25T11:58:00.002+03:00

What is the effect of the European Court's rulings on other countries than the one in the specific case at hand? An intriguing question not only of legal theory, but especially of practice. A political scientist and a legal scholar have joined forces to make some forays into answering this question. Laurence R. Helfer of the Duke University School of Law and Erik Voeten of Georgetown University's Edmund A. Walsh School of Foreign Service have posted a working paper on SSRN entitled 'Do European Court of Human Rights Judgments Promote Legal and Policy Change?'. The paper explores the more general question by looking at the follow-up of the Court's LGBT case-law. This is the abstract:

Do the rulings of international courts set precedents that influence actors other than the parties to the dispute? Are international courts agents of change or do their judgments merely reflect ongoing social and political trends? We answer these questions in the context of European Court of Human Rights (ECtHR) judgments on lesbian, gay, bisexual and transgender (LGBT) issues. ECtHR judgments often explicitly reflect evolving practices in Council of Europe’s member states. We suggest three mechanisms through which such judgments could push lagging states toward adopting policies and laws in line with those of more progressive countries. First, national courts can rely on ECtHR jurisprudence to invalidate domestic laws. Second, ECtHR rulings can help inform and mobilize domestic constituencies to push for legislative change. Third, ECtHR rulings can have an indirect effect by affecting the conditions the EU and the Council of Europe set for membership. We investigate these hypotheses using a new dataset that matches ECtHR judgments on LGBT issues with national laws and policies in Council of Europe member countries. We address endogeneity concerns by modeling the Court’s decision-making process. We find that ECtHR judgments have a significant and positive effect on the probability that lagging countries will adopt legal reforms that expand LGBT rights and that all three mechanisms contribute to this. Even though the implementation of ECtHR rulings is far from perfect, the precedential effect of these rulings sometimes induces states to adopt policies that they might otherwise not have adopted or would have adopted later.

Kant and the Convention

2011-05-18T14:19:00.003+03:00

Although Immanuel Kant's home town of Kaliningrad, formerly Königsberg, falls within the territorial ambit of the European Convention, who would have thought that the famous philosopher's ideas could be relevant in assessing the national implementation of the ECHR? Mads Andenas of the University of Oslo and Eirik Bjorge of the University of Oxford have published "National Implementation of ECHR Rights: Kant’s Categorical Imperative and the Convention" as a University of Oslo Faculty of Law Research Paper. This is the abstract:

The effectiveness of the European Convention of Human Rights and of the judgments of the European Court of Human Rights depends on national implementation. This article looks at the implementation of the Convention in Belgium, the Czech Republic, France, Germany, Norway, Russia, and the United Kingdom. In all of these jurisdictions there has been fundamental change over the last 10-15 years. For the ECHR system to work, the national courts must interact with Strasbourg only in ways which are capable of being universalised and applied also by other European courts. This article inquires into whether national courts have taken on board the imperative of their role and responsibility in a wider European context: a UK exceptionalism will breed a Russian etc. The inquiry concludes that the national jurisprudence implementing the Convention into national law generally has taken this imperative on board.

Documents on EU Accession to the ECHR

2011-05-16T12:56:00.002+03:00

With the negotiations between the European Union and the state parties to the ECHR in full swing about the accession of the EU to the European Convention, the "Informal Group on Accession of the European Union to the Convention" has a specific page on the website of the Council of Europe. It contains the reports of the meetings so far, updated versions of the draft accession agreements, reactions by states and NGOs and much more. A perfect way to remain abreast of the developments on this important issue.

Case Note on Humanitarian Law and ECHR

2011-05-12T10:29:00.000+03:00

It might be an unexpected place to look for it, but the newest issue of the Chinese Journal of International Law (vol. 10(1), 2011, 129-140) includes a case note by Eriko Tamura of Kansai University in Japan entitled 'The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts'. This is the abstract:

This note analyses the 2005 Isayeva cases of the ECtHR, involving a non-international armed conflict, in order to show whether the Court applied only and directly the stricter standards of HRL (right to life in Article 2 of the ECHR) and, if not, how the Court substantially relied on IHL, by focusing on the differences of the principles of necessity and proportionality for the use of force between HRL and IHL. It concludes, contrary to what some authors insist, that even in the absence of the invocation of a public emergency in Article 15 of the ECHR by the State concerned, and therefore cautiously, the Court did indirectly apply IHL as an interpretive guideline for HRL.

Article on ECHR and Right to Reputation

2011-05-04T11:39:00.006+03:00

Stijn Smet, PhD researcher at the University of Ghent, published an article on ECtHR defamation jurisprudence entitled 'Freedom of Expression and the Right to Reputation: Human Rights in Conflict' in the American University International Law Review (Vol. 26, No. 1, pp. 183-236). This is the abstract:

Ever since the European Court of Human Rights has recognised the existence of a right to protection of reputation under the European Convention on Human Rights, a conflict between Convention rights arises in defamation cases. In such situations of conflict between freedom of expression and the right to reputation, the principle of indivisibility of human rights requires that both rights carry a priori equal weight. Yet, the research conducted for this article indicates that the Court engages in preferential framing and incomplete reasoning when attempting to resolve the conflict in its defamation case law. In order to pre-empt such preferential framing and to improve the reasoning of the Court the article proposes a theoretical model for the resolution of conflicts between human rights. The jurisprudence of the Court on the conflict between freedom of expression and the right to reputation in defamation cases is critically analysed through the lens of this model. The article demonstrates how the model might prove to be a useful tool to improve the legal reasoning of the Court in defamation cases.

Report on Legitimacy of the ECtHR

2011-05-03T10:21:00.005+03:00

Yesterday, the report 'The Legitimacy of the European Court of Human Right's: The View from the Ground' was presented in Strasbourg'. The research for the report was undertaken by Basak Çali, Anne Koch and Nicola Bruch, political scientists of University College London. The report presents an "analysis of the perception of the European Court of Human Rights in five different political and legal contexts to understand how the Court’s rulings are interpreted and implemented in the domestic setting." Five countries were studied in-depth by way of interviews with key domestic actors (politicians, judges, lawyers): the United Kingdom, Turkey, Bulgaria, Germany and Ireland. The clearly written report has includes a lot of very interesting findings and concludes, amongst other, that overall the european court has a 'legitimacy credit' rather than a 'legitimacy deficit'.

For the website of the research project, click here.