Monday, 20 January 2020

Guest Post on Hungary's Suspension of Pilot Judgment Implementation

It is my pleasure to present another guest post by professor Renata Uitz of Central European University in Budapest. Her comments go into the decision of the Hungarian government of a few days ago of suspending the effect of the pilot judgment of Varga and others about prison conditions contrary to Article 3 ECHR. All the more remarkable as Hungary's record on implementation on this particular issue had seemed rather positive until now. 

Hirst Meets Burdov in Hungary’s New Year Resolution: The Hungarian Government Suspends the Enforcement of a Pilot Judgment 

Renata Uitz

On 18 January 2020, a secretary of state in the Ministry of Justice announced the adoption of a Government resolution that suspends the payment of compensation for inmates facing inhuman and degrading detention conditions in Hungarian prisons. According to the official statement the suspension is meant as a first step in eradicating the abuse of EU law (sic) and Hungarian law through what was labeled as the „prison business” in Hungary. Accordingly, the Hungarian government will review the application of the law that put in place a compensation for inhuman prison conditions. As to the scale of said „prison business:” according to the secretary of state some 12.000 lawsuits have been commenced so far and the amounts of compensation paid reach HUF 10 billion (approx. EUR 30 million) so far.

Background: The Exemplary Execution of a Pilot Judgment

The act of parliament that is at the center of the controversy was adopted to the enforce the pilot judgment of the European Court of Human Rights (ECtHR) in Varga and others v. Hungary (10 March 2015). In its judgment, the Court noted that „the Government did not dispute the facts as submitted by the applicants concerning the actual dimension and occupancy of the cells in which they were held during their detentions.” (para. 79). It further noted that „in some cells of these applicants, the lavatory was separated from the living area only by a curtain, the living quarters were infested with insects and had no adequate ventilation or sleeping facilities; and detainees had very limited access to the shower and could spend little time away from their cells. The Government did not refute either the allegations made by the applicants on these points or the findings of the various bodies which had visited the detention facilities where the applicants were detained.” (para. 90).

The ECtHR was sufficiently concerned about the state of detention – and the case load this generated – that when issuing a pilot judgment, the Court did not adjourn the examination of similar pending cases: “[r]ather, the Court finds that continuing to process all conditions of detention cases in the usual manner will remind the respondent State on a regular basis of its obligation under the Convention and in particular resulting from this judgment.” (para. 116, emphasis added)

One of the applicants in the case was represented by the Hungarian Helsinki Committee, a well-recognized human rights watchdog organization. The Helsinki Committee remained closely involved with the implementation, inter alia, using formal follow-up opportunities in the execution process on the European level. In the execution phase the pilot judgment in Varga and others was handled together with István Gábor Kovács group of cases.

The real victory in the case happened when the Hungarian government complied with the pilot judgment: in addition to expanding the use of house arrest and ‘reintegration custody’ (monitoring at home) on 25 October 2016 the Hungarian Parliament passed Act No. CX of 2016 which entered into force on 1 January 2017 to put in place a new preventive and compensatory system. It reflects the scale of overcrowding in prisons that according to the data available in the Committee of Ministers’ execution database in half a year over 2.000 requests were filed for the preventive remedy and over 5.000 for compensation. Thereupon HUF 153.510.900 (approx. EUR 497.040) was paid in compensation under the new law. Once the Committee of Ministers certified the effectiveness of the compensation mechanism, the ECtHR stopped accepting stock standard overcrowding complaints (see Domján v. Hungary, decision of November 14, 2017 (inadmissible).

The execution of the pilot judgment on prison overcrowding was a strong card up the sleeves of the Hungarian government when it came under scrutiny for the state of the rule of law in Hungary. The focus is usually on Baka v. Hungary (Judgment of June 23, 2016 [GC]), and the refusal of the government to adopt general measures that would counter the chilling effect of the government’s prior actions on Hungarian judges to criticise in public the reform of the Hungarian judiciary. By contrast, the Hungarian government’s stellar performance with executing Varga and Others was well documented within the Council of Europe for even the harshest European critics.

But now, it is the compensation system for inhuman and degrading detention conditions that has recently come under attack from the highest levels of the Hungarian government.

The New Year Brings a New Resolution

On 9 January 2020 Prime Minister Orban himself noted the impossible situation that results from the Hungarian’ government having to pay millions to convicted criminals at an international press conference due to the judgment of the Court of Justice of the EU (sic). The press conference was mostly covered in the press on account of PM Orbán’s criticism of a Hungarian court’s judgment ordering compensation to Roma victims of school segregation; the image of prisoners not worthy of taxpayer support was added almost as a by-the-by. In the coming days several senior civil servants made comments about the „prison business.” On 15 January 2020 the secretary of state for the Prime Minister’s Cabinet added that the Government plans to investigate in the European Parliament and Council of Europe whether detainees should be entitled to compensation at all. This statement may have sounded reassuring to some European political actors (although it is unclear what the European Parliament may have to do with the enforcement of ECtHR judgments), even though it openly calls for questioning the wisdom expressed in the judgments of the ECtHR in defense of Convention rights.

Then on Friday, 17 January 2020, PM Orban said in his weekly radio interview to a friendly journalist on Hungarian state radio: "’a group of clever, well-known lawyers’ realised that the European regulations about torture are so loose and absurd that with reference to them ‘one can run a lucrative business’." He added that "he expects ‘these fair lawyers’ to turn to the European Court, and based on his experience of European judges, they also believe that it is a genuine problem that ‘prison cells are not sunny enough’. However, it is still better to highlight the absurdity of a rule than ‘to fork out like a fool,’ he said." 

PM Orbán’s comments in his radio interview were primarily triggered by the resolution of the European Parliament (2020/2513(RSP)) passed the day before, finding that „the reports and statements by the Commission and international bodies, such as the UN, OSCE and the Council of Europe, indicate that the situation in both Poland and Hungary has deteriorated since the triggering of Article 7(1) TEU” (i.e. the EU’s rule of law preventive mechanism to safeguard the rule of law against a clear risk of a serious breach). In particular, PM Orbán attributed the formal condemnation to the betrayal of the European People’s Party and the operation of the Soros network, noting that “the world’s number one oligarch ‘controls political activities via a mafia-like network and exerts influence on European politics’.”

As is well-familiar, the ‘Soros network’ is a shorthand that includes human rights watchdogs that represent clients before the ECtHR. To give a sense of the atmosphere in the wake of the PM’s remarks, on Sunday at a memorial for victims of forced labor a retired Calvinist army pastor claimed that the Helsinki Committee had smuggled cockroaches into Hungarian prison in match boxes so that it could provide evidence of deplorable prison conditions. In its response denying the smuggling operation the Helsinki Committee reminded that the army pastor is known for blessing the flag of the Hungarian Guard, an extreme right wing paramilitary organisation. The memorial for the victims of forced labor was also attended by another secretary of state (this time for the Ministry of Human Resources), adding weight to the august gathering.

What is Next?

The Hungarian government’s suspension of the statutory remedy provided by courts for inhuman and degrading treatment in detention violates the most basic guarantees of the rule of law.

The likelihood of success of a challenge against a Government resolution before the Hungarian Constitutional Court is slim not only because the Constitutional Court is packed, but also because the avenues of access to the Court against a Government resolution are limited against such a measure. Without a judicial decision in a concrete case, a constitutional complain may be submitted against a legal norm in abstract terms as an exception (Article 26(2) of the Act on the Constitutional Court). In practice, the examination of such exceptional constitutional complains rarely ever reaches the merits according to the inhouse statistics of the Constitutional Court.

In January 2020, the Hungarian government did more than suspend the execution of a pilot judgment: it suspended the effective domestic remedy for inhuman and degrading treatment in Hungarian detention facilities. This move is likely to drive detainees to the ECtHR - as before Varga and Others. If the Hungarian Government’s statistics are accurate, the number of potential cases are in the thousands.

It is particularly alarming that the Hungarian Government’s blatant defiance of the Court, the rule of law and the European human rights regime more generally follows a familiar recipe and happens at the expense of detainees’ rights -- à la Hirst. To add insult to injury, it is estimated that up to a third of Hungarian detainees are in pre-trial detention, and are not serving a sentence imposed by a final judgment.

These applicants have a strong case not only on account of the prison overcrowding and the prevailing inhuman and degrading conditions in Hungarian detention facilities, but also because the ECtHR frowns upon the systemic non-enforcement of judicial decisions (Burdov (no. 2.) v Russia, judgment of 15 January 2009). When the systemic non-enforcement of judicial decisions is based on a discretionary decision relaying open political considerations, the applicant’s case is all the stronger, as it violation of a basic tenet of the European public order, the rule of law. In the words of the ECtHR (in Aliyev v. Azerbaijan, Judgment of 10 September 2018, para. 225):

“the Convention is a constitutional instrument of European public order, the States Parties are required, in that context, to ensure a level of scrutiny of Convention compliance which, at the very least, preserves the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle. This is all the more so since the Statute of the Council of Europe, an organisation of which each of the States Parties to the Convention is a Member, refers in two places to the rule of law: first in the Preamble, where the signatory Governments affirm their devotion to this principle, and secondly in Article 3 which provides that “every Member of the Council of Europe must accept the principle of the rule of law .” 

Thursday, 9 January 2020

New ECHR Readings

A very good new year for all the readers of the ECHR blog! please find below the newest selection of readings related to the ECHR and the Court:

* Jeffrey Kahn, ‘The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St Petersburg’, European Journal of International Law, vol. 30, issue 3 (2019), pp. 933-959:

'Russia eagerly ratified the European Convention on Human Rights (ECHR) in 1998. Twenty years later, the chair of its Constitutional Court now expresses resentment at the subordination of Russian sovereignty. A new law expands his Court’s jurisdiction to deny effect to judgments of the European Court of Human Rights, an unprecedented power that has already been used twice. This article analyses this law and its application in its first two years. Both the claim of ‘subordination’ and the Russian response to it, in law and practice, rest on weak legal ground. But Russia’s action also raises deeper theoretical and practical questions for the ECHR as a ‘living instrument’ subject to the ‘evolutive’ interpretations of the Strasbourg Court. If other member states mimic Russia’s response to these issues, a European human rights system premised on the final interpretive authority of an international court could come to its end.'

* A. Blankenagel, ‘The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: A Reply to Jeffrey Kahn’, European Journal of International Law, vol. 30, issue 3 (2019), pp. 961-969. 

* Christine Bicknell, ‘Uncertain Certainty?: Making Sense of the European Court of Human Rights’ Standard of Proof’, International Human Rights Law Review, vol. 8, issue 2 (2019), pp. 155-187:

'The European Court of Human Rights (ECtHR) declares a single standard of proof (‘SoP’): proof beyond reasonable doubt (‘brd’). Yet the accuracy of this claim and the threshold’s appropriateness have both been challenged. This article uniquely considers and clarifies the Court’s interpretation and application of its SoP. Demonstrating SoP is capable of both broad and narrow interpretations, it shows the Court interprets SoP only narrowly. This understanding confirms brd as the applicable standard, whose use is then considered through detailed examination of the case law. The analysis shows that although the Court’s conception and approach to brd necessarily accommodate some doubt, violations are found with a consistently high level of certainty. There is however, a striking inconsistency in references made to the Rules of Court. Moreover, the Rules do not fully capture the Court’s approach. Addressing this, as the article proposes, would strengthen both the consistency and legitimacy of relevant decisions.'

* Christophe Deprez, ‘The Admissibility of Multiple Human Rights Complaints: Strasbourg and Geneva Compared’, Human Rights Law Review, vol. 19, issue 3 (2019), pp. 517-536:

'This article seeks to provide a comparative and up-to-date overview of the applicable rules and relevant practice of the European Court of Human Rights and of the United Nations Human Rights Committee on forum duplication in international human rights litigation. While specific inadmissibility clauses have been included in both the European Convention on Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights with a view to preventing multiple human rights petitions in relation to the same matter, their respective scopes differ. Moreover, the applicable normative framework has led to important—and diverging—judicial developments in Strasbourg and in Geneva, which may be of great significance in human rights practice and therefore deserve to be thoroughly addressed.'

* Christos Giannopoulos, ‘The Reception by Domestic Courts of the Res Interpretata Effect of Jurisprudence of the European Court of Human Rights’, Human Rights Law Review, vol. 19, issue 3 (2019), pp. 537-559:

'This article focuses on two subjects: the attitude of national courts towards the jurisprudence of the European Court of Human Rights and their role in the achievement of effective domestic implementation of the European Convention on Human Rights. The first topic outlines a typology of the positions adopted, which is proposed in order to underline the national strategies regarding the reception of the res interpretata effect of the Court’s judgments. The second provides a critical analysis of the mirror metaphor, which is proposed to resolve some unproven and untested assumptions that domestic courts act as puppets and cannot go beyond Convention standards without violating the Court’s authentic interpretations. In both cases, examples are given of domestic courts’ practices in order to clarify that the judicial interaction between domestic courts and the European Court of Human Rights is not always harmonious.'

* Bríd Ní Ghráinne and Aisling McMahon, ‘Access to Abortion in Cases of Fatal Foetal Abnormality: A New Direction for the European Court of Human Rights?’, Human Rights Law Review, vol. 19, issue 3 (2019), pp. 561-584: 

'In contrast to the United Nations Human Rights Committee, the European Court of Human Rights (ECtHR) has not yet found that a prohibition of abortion in cases of fatal foetal abnormality violates the prohibition of torture or inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. We argue that the ECtHR is on the verge of aligning itself with the Committee because, first, recent ECtHR jurisprudence is broadening its interpretation of rights within the abortion context; second, the ECtHR frequently uses international law as an interpretative tool; and, third, moving in the direction of the Committee would not be as controversial as it may have been in the past. More broadly, we view the proliferation of international and regional human rights' treaty regimes as a positive aspect of international human rights law and demonstrate how a body established to adjudicate on human rights disputes can, with some ingenuity, broaden its approach on sensitive topics by engaging with views of other human rights courts and treaty monitoring bodies.'

* Anne Lise Kjær, ‘Translation of Judgments of the European Court of Human Rights into Non-official Languages: The Politics and Practice of European Multilingualism’, in: Anne Lise Kjær and Joanna Lam (eds.): Language and Legal Interpretation in International Law (Oxford University Press, forthcoming): 

'The paper examines the role that translation of judgments of the European Court of Human Rights (ECHR) has played in the dialogue between the Member States of the Council of Europe and the Court over time. The judgments of the ECHR are produced in the two official languages, English and French, only. Translation into other languages was never an issue in the discussions leading to the adoption of the European Convention on Human Rights, and not until the beginning of the reform process at the turn of the century was translation of ECHR judgments into non-official languages put on the agenda. It was introduced into the reform discourse under the heading of Member States’ implementation of the convention and their knowledge and understanding of the Court’s case law. The paper traces the development of translation arguments in the reform discourse and discusses the possible reasons why translation into languages other than English and French was not an issue until the Court faced challenges from the Member States in the early 2000s. It is argued that the choice of language policy and considerations regarding translation into the national languages of the Member States indicate the institutional balance that exists at any given time in the interface between the national and European level of Human Rights law.'

* Pan Mohamad Faiz (Center for Research and Case Analysis, the Constitutional Court of Indonesia), ‘The Dissolution of Political Parties in Indonesia: Lessons Learned from the European Court of Human Rights’, Journal of Legal, Ethical and Regulatory Issues, Volume 22, Issue 4 (2019) pp. 1-10:

'This article aims to examine several important decisions related to the dissolution of political parties decided by the international human rights courts. It aims to conclude that there are general guidelines on political party dissolution established by the European Court of Human Rights (ECtHR) and uses sources obtained from relevant case studies to support it. Not only does the research highlight that the ECtHR provides requirements that must be fulfilled by the government to justify dissolution, it also dictates the procedural requirements for the restriction of political parties. These guidelines are necessary in a democratic society, regardless of its limited ‘margin of appreciation’. Although Indonesia is not a state party to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the interpretation and legal considerations made by ECtHR could be applied by the Constitutional Court in deciding the outcome of political party dissolution cases in Indonesia. Thus, ensuring that the Constitutional Court’s future jurisprudence complies with the international standards of human rights.'

Friday, 20 December 2019

My new article Why Attacks on Civic Space Matter in Strasbourg

As the last post before the Christmas break, and with lots of interesting ECHR developments (not in the least today's extensive interpretation of Articles 2 and 8 ECHR by the Dutch Supreme Court in its judgment today in the Urgenda case on climate change and national policy), I am hereby happy to announce the publication of my new article entitled 'Why Attacks on Civic Space Matter in Strasbourg: The European Convention on Human Rights, Civil Society and Civic Space', published Open Access in the Deusto Journal of Human Rights (no. 4, 2019). This is the abstract:

'This article explores the role of the European Convention on Human Rights in addressing the issue of attacks on civic space, but also the potential effects of shrinking civic space on Strasbourg’s work. First, an overview of the notions of civil society and civic space is given, linking these concepts to democracy and human rights. Subsequently, the formal and informal roles for civil society in the judicial decision-making are discussed. Finally, the substantive protection offered to civil society and civic space under the ECHR and the case-law of the European Court of Human Rights is analysed. This article argues that the differentiations in theory on the varying contributions of civil society to democracy and human rights are to a large extent reflected in Strasbourg jurisprudence. Even more importantly, the ECHR system and civil society benefit from each other. This is why the current attacks on civic space are not just a problem for civil society itself, but also for the work of the European Court: it is submitted that a shrinking of civic space can also negatively affect the Strasbourg system, as the two are intertwined to a considerable extent.'

Happy holidays to all the readers of the ECHR Blog!

Thursday, 12 December 2019

Call for Papers on Freedom of Expression Challenges and the ECHR

The Centre for Fundamental Rights at the Hertie School and the International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice have published a call for papers on the theme of 'Old and New Threats to Freedom of Expression. Can the European Court of Human Rights Meet the Challenges?' for a workshop to be held on 12 June 2020 in Berlin. This is the abstract of the workshop's content:

'The European Court of Human Rights says that freedom of expression is one of the essential foundations of a democratic society. It is one of the basic conditions for the progress of a democratic society and each individual’s self-fulfillment. While the ‘classic’ questions remain (when can free speech be legitimately limited within a liberal democracy), a number of modern-day challenges to freedom of expression are arising. For instance, what is the role of private online intermediaries? How does the contemporary wave of disinformation impact on rights? What questions do the extraterritorial dimensions of freedom of expression raise? We welcome submissions proposing novel analysis of both ‘classic’ freedom of expression questions, such as hate speech, political correctness, terrorist propaganda and whistleblowing and new challenges, as online expression, mis/dis-information, mal-information and ‘fake news’, the increasing concentration of media ownership, and the rise of populist expression. Particularly, we seek to explore what can the ECtHR do to address the most problematic freedom of expression-related questions raised by illiberal democracies and restrictive political regimes within Europe. Freedoms of judicial, academic, artistic, political, journalistic and corporate expression fall squarely within the goals of this workshop.'

The deadline for submission of abstracts (maximum 500 words) is 31 January 2020. Please submit to starke at .  

Tuesday, 3 December 2019

Launch of New Journal: European Convention on Human Rights Law Review

The landscape of academic human rights journals continues to grow. It is a pleasure to announce here that two ECHR experts, Kanstantsin Dzehtsiarou and by Vassilis Tzevelekos, are launching a new journal exclusively dedicated to the ECHR: the European Convention on Human Rights Law Review, to be published with Brill. The journal's aim is to 'connect law and practice and look at the ECHR from a multi-disciplinary perspective.' in the creators words it is 'the first scholarly journal devoted exclusively to the legal regime of ECHR. The Review offers peer-reviewed, legal scholarship on the protection of fundamental human rights within the ECHR framework and on its implications for other regional human rights regimes. It is a forum for inter alia comparative law, human rights law, international law and philosophy of law analysis of the practice and procedures of the ECHR regime. While favouring legal (doctrinal, theoretical and philosophical) analysis, the Review also publishes multi-disciplinary works at the crossroads of law, history, political science and economics. It is open to all methods and schools of thought, including, comparative, doctrinal, quantitative and economic analysis of (case) law. It offers scholarship and information of interest to scholars and practitioners, both in the member states and other regions, as well as to all those working in the field of human rights law.'

The journal accepts submissions of articles up to 18000 words, case comments of up to 10000 words and book reviews. To submit articles, click here. The new journal can also be followed on twitter: @LawECHR . 

Friday, 29 November 2019

New Book on Fatherhood and the ECHR

Alice Margaria of the Max-Planck-Institut für ethnologische Forschung has just published The Construction of Fatherhood. The Jurisprudence of the European Court of Human Rights with Cambridge University Press. A great example of combining social sciences and the law. The book has already received praise from scholars who referred to it as "exemplary piece of scholarship" (Eva Brems), "a crystal-clear overview of the construction of fatherhood" (Frederik Swennen)  and "nothing short of a jewel - the author knows how to allow a highly complex, dynamic and technical theme to unfold gradually and naturally. In doing so, she has produced a 'tour de force' that is both highly enlightening and genuinely exciting to read" (Marie-Claire Foblets). This is the abstract:

'The book tackles one of the most topical socio-legal issues of today: how the European Court of Human Rights is responding to shifting practices and ideas of fatherhood. The jurisprudential analysis is situated in a context of social change that offers radical possibilities for the fragmentation of the conventional father figure and therefore urges decisions upon what kind of characteristics makes someone a legal father. In a range of paradigmatic domains, this book explores the Court's understanding of what it means to be a father today, and whether care is valued at all. It also reflects on the genesis of the Court’s (re-)construction of fatherhood, thus shedding light on the roles played by doctrines of interpretation.'

Thursday, 21 November 2019

Special Issue on ECHR and Derogations

The Austrian Review of International and European Law Online has published a special issue on derogations from the European Convention on Human Rights. My SIM colleague Kustrim Istrefi  (Utrecht University) and Stefan Salomon (University of Graz) were the editors of this volume that goes into a number of country case studies of recent real or announced derogations from the ECHR in the last few years. These are the articles included in it:

* Kushtrim Istrefi and Stefan Salomon, 'Entrenched Derogations from the European Convention on Human Rights and the Emergence of Non-Judicial Supervision of Derogations'

* Benedikt Harzl and Oleksii Plotnikov, 'Ukraine’s Derogation From the European Convention on Human Rights'

* Luca Pasquet, 'The French State of Emergency: From Crime-Repression to the Protection of Public Order'

* Kerem Altiparmak and Senem Gürol, 'Turkey’s Derogation of Human Rights under the State of Emergency: Examining its Legitimacy and Proportionality'

* Vassilis P Tzevelekos, 'The United Kingdom’s Presumption of Derogation from the ECHR Regarding Future Military Operations Overseas: Abuse of Rights, Articles 17 and 18 ECHR, and à la carte Human Rights Protection'

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.