Monday, 11 November 2019

New Book on Admissibility at the European Court

Robin Schädler has published the new book Re-designing the Admissibility Model of the European Court of Human Rights with Schulthess Verlag. The book re-interprets the existing admissibility criteria with a view to making their interpretation more principled and predictable. Based on a theory of justice termed "communitarian egalitarianism", the thesis compares the stance of the European Court of Human Rights with six European constitutional courts to see whether any lessons can be learned from them. It is partly based on around 60 interviews with judges, judicial assistants and other stakeholders. This is the abstract (in German):

'Wenn der EGMR zum Thema wird, dreht sich die Diskussion üblicherweise um Urteile. Demgegenüber fristen die Unzulässigkeitsentscheidungen, welche einen Löwenanteil von 97% bis 98% aller Fälle ausmachen, ein Schattendasein. Vorhersehbar ist der Ausgang eines Verfahrens unter Umständen kaum. Der Grund dafür ist, dass der EGMR sich selbst nicht darüber im Klaren ist, für was er steht. Dies nimmt «Re-designing the Admissibility Model of the European Court of Human Rights» zum Anlass, um eine neuartige Gerechtigkeitstheorie zu formulieren, anhand welcher die bestehenden Zulässigkeitskriterien uminterpretiert werden. Dadurch wird deren Anwendung prinzipientreuer und vorhersehbarer, sodass Rechtsanwender*innen eher abschätzen können, ob sich ein Gang nach Strassburg lohnt.'

Wednesday, 6 November 2019

New ECHR Readings

Please find below a new selection of recent academic articles and other documents related to the European Convention and the European Court:

* Amalte Frese and Henrik Palmer Olsen, ‘Spelling It Out−Convergence and Divergence in the Judicial Dialogue between CJEU and ECtHR’, Nordic Journal of International Law, vol. 88, issue 3 (2019) pp. 429-458:

'In this article we investigate the relationship between the Court of Justice of the European Union and the European Court of Human Rights as it manifests in explicit cross-references between the two Courts’ jurisprudence. The analysis detects cross-references, how they are used and indications of converge or divergence in the jurisprudence through their explicit citations and references. Our dataset consists of the entire corpus of judgments from both Courts from 2009 (when the EU Charter on Fundamental Rights came into force and until the end of 2016. On the basis of a content search for references to the other Court in both corpora we detect all their cross-references. We find that 1) the Courts’ use each other’s case law surprisingly little, but when they do, it is 2) primarily within the legal domains of criminal justice and immigration policies, and 3) displaying convergence towards the jurisprudence of the other Court.'

* Simone Lonati, ‘Anonymous Witness Evidence Before the European Court of Human Rights: Is It Still Possible to Speak of "Fair Trial"?’, European Criminal Law Review 1 (2018):

The purpose of this paper is to encourage a reflection on the use of anonymous witness evidence by the European Court of Human Rights. An analysis of the leading cases solved by the Strasbourg judges will provide an overview of the European case law developments on such a delicate topic, considering how the accused’s right of defence is seriously impaired when anonymous depositions are admitted in proceedings. The Court’s most recent decisions on this topic do create some concern. They represent a considerable step backward in the guaranteed right to confrontation, which, especially when dealing with anonymity, does not seem acceptable. While there is no question on the need to protect persons other than the accused in criminal proceedings and on the urgency to safeguard the safety of witnesses, when in danger, and preserve the source of evidence, on the other hand, it is hard to imagine what “counterbalancing procedures” could compensate for all that the accused is denied when the identity of the person making incriminating statements against him/her is concealed. It is, therefore, a matter of making a civilised choice, and of asking ourselves whether in a trial that still aspires to be defined as “fair”, anonymous incriminations may be tolerated.' 

* Katarina Frostell, ‘Welfare rights of families with children in the case law of the ECtHR’, The International Journal of Human Rights (published online 29 July 2019):

'This article sets out to apply a human rights perspective on welfare rights of families with children. It explores how such rights emerge in the case law of the ECtHR by focusing on traces of substantive welfare rights in the Court’s reasoning when determining the personal and material scope of ECHR rights at different stages of the proceedings. The rights under investigation are the right to non-discrimination, the right to respect for family life and the right to property. The findings show that the right to non-discrimination has in many instances managed to question gender stereotypes by taking important steps away from the biologically defined conception of motherhood towards viewing caring roles and tasks more as social functions that both social and biological parents are fulfilling. Vulnerable groups of mothers and children have had more difficulties in getting their rights protected under the present non-discrimination framework. Developments under Article 8, indicating that the right to family life includes a core element of social rights at least in the context of destitute families are therefore promising.'

* Majid Nikouei and Masoud Zamani, ‘Jurisprudence of Tolerance: Hate Speech, Article 17 and Theory of Democracy in the European Convention on Human Rights’, International Human Rights Law Review, vol. 8, issue 1 (2019) pp. 67-88:

'What does the protection or prohibition of a speech tell us about the tripartite relationship between political power, democracy and rights? This question has somehow underscored the jurisprudence of the European Court of Human Rights in hate speech cases for more than a half century. We argue that this question has invariably placed the Court in an uneasy position, which is, choosing between a democracy empowered by unlimited freedom of speech, but with recurrent social tensions, and a democracy with rather strict hate speech laws, but at ease with different segments of population. That said, the jurisprudence of the European Court outlines a pattern by which to identify a specific direction for the evolution of rights and democracy. This article considers this pattern. Not only does this article examine the pattern in the Court’s and the Commission’s jurisprudence, but it also argues that this pattern unfolds a subtle presence of Hobbesian and Lockean theories of political power and the limits in its midst. By invoking this presence, we indicate how the debate in the jurisprudence of the European Court has shifted from the language of protecting democracy to that of rights.'

* Lieneke Slingenberg, ‘The Right Not to be Dominated: The Case Law of the European Court of Human Rights on Migrants’ Destitution’, Human Rights Law Review, vol. 19, issue 2 (2019) pp. 291-314. 

'The European Court of Human Rights increasingly deals with migrants’ complaints about destitution in their host state under Article 3 of the European Convention on Human Rights (the prohibition of inhuman and degrading treatment). This case law has been criticized for not being consistent and/or for not providing migrants with enough protection. Based on a systematic case law search, in this article, I analyse Article 3 case law on migrants’ destitution from a new perspective: the concept of freedom as non-domination, as developed in (neo) republican theory. It will argue that, seen through this lens, many tendencies in the Court’s case law can be explained and constructed as consistent, and it is submitted that in this way the Court does provide migrants with important protection against unfreedom. Nevertheless, I also argue in the article that the case law could be improved in a number of ways in order to provide more effective and robust protection against domination.'

Friday, 18 October 2019

René Cassin Moot Court Competition 2020

The oldest Moot Court competition on the ECHR is the French-language Concours René Cassin, held every year in Strasbourg. The case for the upcoming year's competition is now online here. The finals are often judged by moot courts including current judges from the Court, which make it an exciting competition. It is organised and run under the sposnorship of the university of Strasbourg, the Fondation René Cassin-Institut International des droits de l’Homme, the European Court of Human Rights and the Council of Europe. The 2020 edition will be held from 25 to 27 March and revolves around human rights and algorithms. For the Concours' Linkedin page including a video impression of the Competition, see here.

Tuesday, 8 October 2019

New Judge Elected in Respect of Portugal

Last week, the Council of Europe's Parliamentary Assembly (PACE) elected Ana Maria Guerra Martins as the new judge in respect of Portugal. By a large majority of the votes cast she was elected for a nine year term. Currently she is an associate professor specialising in human rights at the Law School of Lisbon University and a member of the European Commission's European Network of Legal Experts in Gender Equality and Non-Discrimination. Between 2007 and 2016 she also served as a judge on the Constitutional Court of Portugal. 

The new judge will succeed Paulo Pinto de Albuquerque on 1 April 2020, the judge well-known for his many separate, dissenting and concurring opinions that have been a feast for external Strasbourg watchers and case-law analysts.

Thursday, 3 October 2019

September Issue of NQHR Online

The September 2019 Issue (Vol. 37, No. 3) of our Netherlands Quarterly of Human Rights is now online. It includes three articles directly related to the ECHR:

* Eva Brems, 'Positive subsidiarity and its implications for the margin of appreciation doctrine': 

'The article presents an argument in favour of a richer theory of subsidiarity in the European Court of Human Rights context. In particular, the proposal is to include what is called a ‘positive’ dimension in subsidiarity thinking. That is to say, the article argues that the scholarly and political debate on ECHR subsidiarity has focused mostly on ECHR restraint, associated with a wide margin of appreciation for the States Parties. There is however a complementary dimension in the subsidiarity layout, which concerns the responsibility of national authorities to offer first-line protection of Convention rights. The article examines the role the European Court of Human Rights can play in facilitating that first-line responsibility. The article explores what this means for the margin of appreciation of national authorities.'

* Lize R. Glas, 'The European Court of Human Rights supervising the execution of its judgments':

'The European Convention on Human Rights (‘Convention’) provides that the Committee of Ministers shall supervise the execution of the European Court of Human Rights’ (‘Court’) judgments. This article aims to address the question whether, despite what the Convention provides, the Court is involved in supervising the execution of its judgments. Additionally, this article addresses the question what the Court does when it is engaged in this exercise. In order to answer these two questions, four aspects of the Court's practice that are linked to the execution process are examined. These are the four aspects of interest: just-satisfaction judgments under Article 41 ECHR, follow-up cases concerning individual measures, follow-up cases concerning general measures and the pilot-judgment procedure. The analysis of these aspects will lead to the conclusion that the Court indeed engages in supervising execution, but also that this does not mean that the Court is taking on the Committee's task and that supervising execution has not become in any way part of the Court's day-to-day work.'

* Francesca Camilleri, 'Compulsory vaccinations for children: Balancing the competing human rights at stake':

'Vaccination for children has been a controversial topic for decades and lately it has regained particular importance. We have seen an increase in vaccine hesitancy and decrease in vaccine confidence throughout Europe, particularly due to vaccine-safety concerns by parents. Consequently, vaccination rates for children have dropped and this in turn has led to an increased spread of vaccine-preventable infectious diseases, such as measles. As a reaction to this phenomenon of vaccine hesitancy, several European countries have introduced, while others are in the process of introducing, laws making vaccinations compulsory for children for a number of vaccine-preventable childhood diseases. The introduction of such laws affects and gives rise to several competing interests of the parents, the child and the State. Against this background, this article seeks to determine how the European Court of Human Rights should balance the competing human rights that are at stake in cases concerning compulsory vaccinations for children.'

Tuesday, 24 September 2019

European Human Rights Moot Court Competition

The call for applications for the 8th edition of the European Human Rights Moot Court Competition (EHRMCC) has been put online. The EHRMCC is the largest English-language human rights moot court competition in the world. It offers excellent opportunities for students from all over Europe to improve their written and oral advocacy skills through simulating the procedures of complaint for the European Court of Human Rights. With this 8th edition of the Competition, the organising European Law Students' Association (ELSA) is introducing mandatory Regional Rounds. This is an excellent opportunity for all participants to improve their oral advocacy, network with fellow participants from all over Europe and prepare for the Final Oral Round! The three Regional Rounds will take place in the United Kingdom, Germany and Lithuania. During the Final Oral Round in Strasbourg, the finalists will plead in front of current Judges of the Court, meet distinguished human rights experts and enjoy grand ceremonies as well as take part in 18 Preliminary Rounds, 4 Quarter Finals, 2 Semi Finals and one Grand Final in the Grand Chamber. 

The fictitious case of the 8th edition of the EHRMCC concerns events surrounding a military operation, which took place in the context of an international armed conflict. In the case, complaints were lodged under Articles 2, 3, 6, 8, and 13 of the European Convention on Human Rights. You can read more about the Competition here and for any enquiries please contact Sarah Ikast Kristoffersen at academicactivities at elsa.org.

Wednesday, 18 September 2019

MOOC on ECHR Open for Participation Again

This month, the newest run of our Massive Open Online Course (MOOC) on the ECHR 'Human Rights for Open Societies' is open for participation again (and a next edition will run from November onwards for which you can register already). Join the more than 16,000 students from across the globe interested in the ECHR system and human rights! For more information see our teaser video here:
Our course covers both the system and general principles of the European Convention as well as a range of specific topics connected to open societies: the linkages between the ECHR and democracy, the issues of non-discrimination and vulnerable groups, and freedom of expression and assembly. Or, as one of our participants stated: 

"By giving concrete examples, the course is able to explain, even simplify, complex (legal) concepts and cases. I strongly recommend this course for everyone wishing to have basic knowledge on how the ECHR system works."

Tuesday, 20 August 2019

Updated Case-Law Guide on Article 1 ECHR

The Court has now made an updated version of its case-law guide on Article 1 ECHR available on its website. The Convention provision, as is well-known, provides that states "shall secure to everyone within their jurisdiction" the rights in the Convention. The case-law guide on this obligation to respect human rights specifically goes into the very contested concepts of jurisdiction and imputability, both notions that have spawned virtual bookshelves of academic literature. All case-law guides are available on the Court's website and now also include a number of translations into Chinese, including on the right to free elections, fair trial, the prohibition of forced labour and the right to liberty.

Wednesday, 14 August 2019

New ECHR Readings

Please find below a number of new ECHR-related readings for Summer reading:

* Stephen Skinner, Lethal Force, the Right to Life and the ECHR. Narratives of Death and Democracy (Bloomsbury Professional; book):

'In its case law on the use of lethal and potentially lethal force, the European Court of Human Rights declares a fundamental connection between the right to life in Article 2 of the European Convention on Human Rights and democratic society. This book discusses how that connection can be understood by using narrative theory to explore Article 2 law's specificities and its deeper historical, social and political significance. Focusing on the domestic policing and law enforcement context, the book draws on an extensive analysis of case law from 1995 to 2017. It shows how the connection with democratic society in Article 2's substantive and procedural dimensions underlines the right to life's problematic duality, as an expression of a basic value demanding a high level of protection and a contextually limited provision allowing states leeway in the use of force. Emphasising the need to identify clear standards in the interpretation and application of the right to life, the book argues that Article 2 law's narrative dimensions bring to light its core purposes and values. These are to extract meaning from pain and death, ground democratic society's foundational distinction between acceptable force and unacceptable violence, and indicate democratic society's essential attributes as a restrained, responsible and reflective system.'

* Ramute Remezaite, 'Challenging the Unconditional: Partial Compliance with ECtHR Judgments in the South Caucasus States', Israel Law Review, Volume 52, Issue 2 (2019) pp. 169-195:

'The European human rights system has long been seen as one of the greatest European achievements, with its European Court of Human Rights (ECtHR) as the world's leading human rights court. Current turbulent times, however, pose serious challenges to the European system, which is increasingly being contested by the deepening ‘implementation crisis’. The absolute obligation of member states of the Council of Europe (CoE) to abide by ECtHR judgments under Article 46 of the European Convention on Human Rights has been increasingly compromised by the selective approach of states, often resulting in minimal, dilatory, lengthy or even contested compliance with ECtHR judgments. As the implementation backlog has grown largely after the accession to the CoE of the newly emerged states, as aspiring democracies, in the late 1990s and early 2000s following the collapse of the Soviet Union, this article analyses the compliance behaviour of these states by looking at the South Caucasus states: Armenia, Azerbaijan and Georgia. The research findings suggest that partial compliance is a very likely form of compliance in the South Caucasus states as democratising states, and that some of the factors that explain such behaviour discussed in the article may be distinctive of states that joined the CoE as emerging democracies after the collapse of the Soviet Union. These states continue to display various vulnerabilities in the areas of human rights, the rule of law and democracy. This, in turn, has serious implications for the whole European human rights system and its ability to ensure that states’ commitments to the CoE are duly respected in the longer term.'

* Manon Julicher, Marina Henriques, Aina Amat Blai, and Pasquale Policastro, ‘Protection of the EU Charter for Private Legal Entities and Public Authorities? The Personal Scope of Fundamental Rights within Europe Compared’, Utrecht Law Review, volume 15, no. 1, pp. 1-25 (2019).

'The personal scope of the Charter of Fundamental Rights of the European Union (the Charter) is an area that still needs to be defined by the Court of Justice of the European Union (CJEU). The issue surrounding the personal scope entails the question of who can claim the protection of fundamental rights. A particularly controversial matter has proved to be the question whether, and if so under what circumstances, private legal entities and public authorities can invoke fundamental rights. This article aims to provide a detailed examination of the ‘landscape’ the CJEU must take into account when dealing with the personal scope of the Charter in the future. Firstly, this landscape is made up of the background and objectives of the EU and the European Convention on Human Rights (ECHR) legal systems. Secondly, it is shaped by the personal scope application of the Charter as interpreted by the CJEU so far, and the personal scope application of the ECHR as interpreted by the European Court of Human Rights (ECtHR). Finally, the application by Member State courts of fundamental rights, via the Charter, ECHR and constitutional rights, forms an element in this landscape. An examination of these aspects will provide answers to the question of how the three main players on the European fundamental rights stage – the CJEU, the ECtHR and the national courts – have applied the personal scope of their fundamental rights up to now. This also encompasses answers to the question of how these applications relate to the different background and objectives of the ECHR and the EU legal systems. These answers will provide the CJEU with tools to deliver well-informed rulings on the personal scope of Charter provisions in the future.'

* Antal Berkes, ‘Concurrent Applications Before the European Court of Human Rights: Coordinated Settlement of Massive Litigation From Separatist Areas’, American University International Law Review, vol. 34, issue 1 (2019) pp. 1-88:

'“Concurrent applications” are defined as applications filed with the European Court of Human Rights (ECtHR) by several individuals and/or a State or States concerning the same factual context, and directed against one or several States, while a substantially analogous matter has already been submitted to one or more other procedures of international investigation or settlement. The present paper submits that the settlement of concurrent applications from separatist areas is feasible through the strategic use of existing procedural tools of the ECtHR without introducing a separate mechanism or further constitutionalizing the Convention to the detriment of individual justice. The Court should settle such concurrent applications in a coordinated way, taking into account the interconnected legal and factual background as well as procedural and substantive law questions of concurrent cases in individual procedures. Each case having its own factual specificities, the broader context and legal background make the concurrent applications interconnected.'

* Analie Frese and Hendrik Palmer Olsen, ‘Citing Case Law: A Comparative Study of Legal Textbooks on European Human Rights Law’, European Journal of Legal Studies, volume 11, issue 1 (2019, Open Access):

'Recent years have seen increased interest in data-driven methods in legal research. Technologies provide new automated alternatives to traditional doctrinal approaches, which rely on manual information retrieval. In this article, we address one aspect of this development. On the basis of a citation network containing judgments on Article 14 of the European Convention of Human Rights, we identify which cases are most frequently cited and explicitly used in the legal argumentation of the European Court of Human Rights. We subsequently compare our findings with presentations of Article 14 in German, French and British textbooks. We aim to demonstrate that 1) network analysis can provide relevant input to legal analysis by relying on objective measures of case importance and 2) scholarship relying on traditional doctrinal methods is more dependent on the authors’ subjective outlook than necessary.'

* Ronan Ó Fathaigh, ‘The Chilling Effect of Turkey’s Article 301 Insult Law’, European Human Rights Law Review, issue 3 (2019) pp. 298-308:

'This article discusses how the approach of the European Court of Human Rights has evolved in seeking to protect freedom of expression from the chilling effect of Turkey’s controversial Article 301 insult law. The article reveals the early reluctance within the Court in finding that the law’s provisions were incompatible with freedom of expression, and yet, the analysis now demonstrates how the Court’s concern for the chilling effect has led the Court to two adopt notable approaches: first, the Court permitting applicants to argue that the law, in and of itself, violates the European Convention on Human Rights, even where an applicant has not been convicted, nor even prosecuted under the law; and second, the Court’s application of its rarely-used competence under Article 46 of the European Convention, finding that amending Article 301 would “constitute an appropriate form of execution” of the Court’s judgment.'

* Ronan Ó Fathaigh and Dirk Voorhoof, ‘Article 10 ECHR and Expressive Conduct’, Communications Law, vol. 24, issue 2 (2019) pp. 62-73:

'The European Court of Human Rights has recently delivered a series of judgments finding violations of the right to freedom of expression over convictions for engaging in expressive conduct. The purpose of this article is to discuss the European Court’s recent case law on expressive conduct under Article 10 of the European Convention on Human Rights, and in particular to assess in what circumstances, if any, domestic courts may impose prison sentences, even if suspended, on individuals engaging in peaceful, but provocative and offensive expression.'


'In this chapter, we propose two different methods to identify what we call polymorph principles in the practice of the European Court of Human Rights, i.e. principles of law that are not directly related to the interpretation of one or few articles in the convention, but are applicable to a case independent of its substantial content. Examples of these principles could be interest rates when states pay reparations, the quality of evidence or the relation between the ECtHR and the contracting states.

Since these transverse precedents are not easily identifiable in the ECtHR’s own database and since they are only occasionally taken under direct treatment in textbooks, we propose two methods to extract them from the more than 17.000 judgments that comprise the practice of the ECtHR. We use the citations between judgments to identify patterns where a precedent is cited by many different types of cases, indicating that the precedent is relevant no matter what article constitute the core of the case.

We conclude that the two different methods, both building directly on earlier research in automatic identification of case content based on citations to other cases and convention articles, yield satisfying results and provides another angle of entrance to the practice of the ECtHR, especially when combined to remove the largest possible amount of false positives.'

Monday, 12 August 2019

Book on Principled Resistance to ECtHR Judgments

A bit over two years ago, professor Marten Breuer of the University of Konstanz organised a great expert conference on the issue of states and their domestic courts resisting in various more or less principled ways the judgments of the European Court of Human Rights. He has now published an edited volume on the topic with Springer, entitled Principled Resistance to ECtHR Judgments - A New Paradigm?. As with the conference, the great asset of the book is that it includes both a set of detailed country case studies, including on Russia, Germany, the United Kingdom and Italy among others, as well as more cross-cutting chapters on the notion of 'principled resistance', its sociological and institutional consequences, the role of the Venice Commission and the issue of national (legal) identity. Well worth a read not just for those interested in the broader backlash-against-international-courts literature, but also for those wanting to look beyond ideological and political debates and more interested in what domestic courts actually do, in detail. This is the summary:

'The book analyses the position of the ECtHR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECtHR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECtHR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept  - 'principled resistance' - to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind 'principled resistance' shows enough commonalities in order to qualify such incidents as expression of a 'new paradigm'.'

Many congrats, Marten!