Friday, 17 May 2019

New Book on the ECHR and Military Operations

Stuart Wallace of the University of Cambridge has published a new book on 'The Application of the European Convention on Human Rights to Military Operations' with Cambridge University Press. The book gives a systematic overview of the key discussions on the topic in the past years, including of course extraterritorial application of the ECHR, but also substantive and procedural obligations under the right to life, and derogations, amongst others. This is the abstract:

'The European Convention on Human Rights is being applied to military operations of every kind from internal operations in Russia and Turkey, to international armed conflicts in Iraq, Ukraine and elsewhere. This book exposes the challenge that this development presents to the integrity and universality of Convention rights. Can states realistically investigate all instances where life is lost during military operations? Can the Convention offer the same level of protection to soldiers in combat as it does to its citizens at home? How can we reconcile the application of the Convention with other international law applicable to military operations? This book offers detailed analysis of how the Convention applies to military operations of all kinds. It highlights the creeping relativism of the standards applied by the European Court of Human Rights to military operations and offers guidance on how to interpret and apply the Convention to military operations.' 

Monday, 13 May 2019

Summer School on Protection of Fundamental Rights in Europe

As every year, the University of Bologna, King’s College London and the University of Strasbourg are co-organising a summer school on “The Protection of Fundamental Rights in Europe” from 23-28 June. The 19th edition of this long-running course is hosted again in the Castle of Bertinoro and focuses on the protection of fundamental rights in both the EU and ECHR systems. This is the announcement on the website:

'The Summer School aims to provide graduates, practictioners and young researchers (Ph.D. candidates) with an in depth background of the protection of fundamental rights at European level. The general courses are about the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. The single modules tackle topics alike asylum and migration, EU citizenship, relationship between the CJEU and the ECHR, the margin of appreciation doctrine, constitutional transitions and religious freedom.

The course is composed by 30 hours of frontal lectures from Monday to Friday 9:00-13:30 and 15:00-16:30. The teaching method encourages students to have a proactive dialogue with lecturers.' 

All information can be found here.

Friday, 10 May 2019

Analysis: The Strasbourg Court's First Advisory Opinion under Protocol 16

On 10 April, the European Court of Human Rights in Strasbourg handed down its first advisory opinion on a substantive issue under the European Convention on Human Rights (ECHR), a competence given to the Court under Protocol 16 to the Convention. The opinion, delivered upon the request of the French Court of Cassation, related to a very specific family law matter, namely ‘the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother’, as the Court phrased it.

A new judicial tool

The advisory opinion procedure is a new power in the Court’s toolkit. Protocol 16, which entrusts the Court with the power to hand down these opinions was negotiated with the aim of enhancing interaction between the Court and national authorities – specifically domestic Courts. The Protocol entered into force on 1 August 2018 and enables the highest courts of State Parties to the Protocol to request the Court to give an advisory opinion on “on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto” (Article 1 of the Protocol). Thus, it serves to elucidate the substantive provisions of the ECHR in order to give guidance to domestic courts in their own judicial task. In this sense, it is a relatively unique feature of interaction between national and international courts, comparable to a certain extent to the preliminary ruling procedure of the Court of Justice of the European Union (EU). One of the key differences being that in the EU context lower courts can also ask questions and highests courts in some cases are obliged to ask questions.

The European Court of Human Rights is best known for its work in contentious proceedings, both between alleged victims of human rights violations and states and in inter-state cases. Its rulings in such cases are binding, just like in instances of deciding upon interim measures. Before the entry into force of Protocol 16, the Court did already have the possibility to give advisory opinions, but these could only be delivered upon request of the Council of Europe’s Committee of Ministers and could not relate to the Convention’s substantive rights. They concerned, for example, procedural issues such as the election of judges to the Court. In the case of the new advisory procedure both the audience, scope and aims are thus different. 

As the Explanatory Report to Protocol 16 clarifies, the new procedure aims to serve two purposes: fostering the dialogue between courts and strengthening the constitutional role of the European Court. Both in turn are geared towards a more effective protection of the rights laid down in the ECHR. Thus the procedure should enable domestic courts to directly include ECHR benchmarks into their judicial decision-making – without waiting for an alleged victim to litigate a case all the way to Strasbourg – and it would enable the European Court to focus on issues of interpretation of the Convention, leaving the detailed context-specific decision to the domestic court. The idea was both to help speed up fundamental rights litigation, increasing the cooperation between the two levels of courts, and to prevent large amounts of (often repetitive) cases from piling up in Strasbourg by ‘solving’ them at the national level. This latter goal is closely tied to the increased emphasis on subsidiarity in the past years, trying to resolve issues at the national rather than het European level. It does, of course, lead to a slight reshuffling of roles. And that is exactly the reason why this first Advisory Opinion under Protocol 16 was so highly anticipated.

Background of the case

The case originated in the voyage of Dominique and Sylvie Mennesson, a French married couple, to California. They concluded a gestational surrogacy agreement with a woman there, using the gametes of Mr Mennesson and the egg of a female friend, as Mrs Mennesson was infertile, to create an embryo by way of IVF. The surrogate mother gave birth to twins in 2000. In a ruling, the Supreme Court of California recognised Mr Mennesson as the genetic father and Mrs Mennesson as the legal mother of the two girls. This formal recognition was reflected in the subsequent birth certificates. The legal troubles started when the parents asked the French authorities to transcribe the American birth certificates into the civil status register. The French authorities refused such a transcription, as they deemed it contrary to public policy. Surrogate motherhood was forbidden in France. 

Eventually, in 2011, the Mennesson family took their case to the European Court, alleging violations by France of the rights to respect for private life and family life. The judgment in the Mennesson case was delivered in 2014. The Court held that the family life of the four (parents and children) had not been violated, but it did find a violation of the right to respect for private life of the two daughters under Article 8 ECHR. It held that it was not in the best interests of the children, especially of their right to identity, to deprive them of legal recognition due to the restrictions in French law, especially since Mr Mennesson was also the biological father. 

Since that judgment, the Court of Cassation in France adjusted its case-law, enabling recognition by birth certificate transcription of at least the biological father in such situations, but not the mother when she was not the biological mother. Moreover, the Mennesson family had to apply for a revision of the earlier refusal to transcribe, so their legal fight was far from over yet. In the proceedings following that revision request, the Court of Cassation decided, and it was the first in Europe to do so, to avail itself of the new Advisory Opinion procedure in Strasbourg. The French court, in its request, clarified that for the mother alternatives to the birth certificate transcription existed: for intended mothers who were married to the recognised father, adoption of the children was possible. The issue was basically whether such an alternative was sufficient under Article 8 ECHR. As one commentator noted, even if the Court of Cassation itself presented the move as an opportunity to enter into institutional dialogue with the European Court, one of the aims of Protocol 16, it could also be seen as a “sign of caution” in a sensitive and complicated issue, in which the French authorities had earlier failed to comply with the ECHR.

The substance of the Opinion

On 12 October 2018, the Court of Cassation sent its request to the European Court, which accepted it early December. It asked two questions. The first was whether the refusal by the French authorities, in the particular circumstances of the case, meant that France was “overstepping its margin of appreciation” under Article 8 ECHR (and whether it mattered legally whether a child was conceived using the eggs of the ‘intended mother’ or not). The second question was, if the first question was answered affirmatively, whether adoption as an alternative would mean Article 8 was complied with.

On the first question, the European Court reiterated that, just like in its original Mennesson judgment, the child’s best interests was a particularly weighty factor in deciding such cases. And, in addition, it would look at the margin of appreciation. On the first factor it noted that the lack of recognition of the legal relationship between mother in children has a negative impact of various aspects of a child’s life. The absolute impossibility for registration as in the French case, made it impossible to examine a situation to “be examined in the light of the particular circumstances of the case” (para. 42). On the factor of the margin of appreciation, the Court noted that – based on a comparative-law survey it undertook, there as no consensus in Europe on the issue. This would normally mean, especially in the field of moral and ethical issues, a wide margin of appreciation for states. However, the fact that particularly important aspects of the right to respect for private life were at stake reduced the margin of appreciation. The Court concluded on this point that “the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”” and that this would apply “with even greater force” (para. 47) in cases when a child was conceived using the eggs of the “intended mother.”

This conclusion made an answer to the second question necessary. On that point, the Court held that alternatives to transcription into a birth registry, such as adoption, may be used “the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”.” Here State Parties to the ECHR have a larger margin of appreciation, the second point relates not to the issue of ‘whether’ but rather of ‘how’ to comply with the Convention. Specifically, the European Court held that recognition of the relationship (between children and intended mother), if legally established abroad, should be possible at the latest when the relationship had become a practical reality. This should be possible under a procedure laid down in national law and implementation of such alternatives should be prompt and effective. It is then for domestic courts to decide whether in a particular context these requirements are met.

Judicial signalling

What then to make of this very first Advisory Opinion? It is important to note that the significance of the Opinion certainly stretches far beyond the possible usefulness for the Mennesson family. Substantively, it is of course important that the Grand Chamber of the European Court clearly tried to formulate answers that should be useful to the domestic court at hand. In a step-by-step fashion it went into the two questions posed to it by the French Court of Cassation and attempted to provide clarity. Whether this has been achieved is debatable. Yes, in the sense of indicating that a full refusal would violate the Convention but that the provision of effective alternatives such as adoption would comply with it. No, in the sense that – just like a fractal on which one zooms in – the challenges are just transferred to different, more detailed issues (when does a relationship become a “practical reality”; what is a ‘prompt and effective’ alternative etc.). The Opinion has therefore already met with some criticism.  

In order to assess which view makes more sense, it is important to go back to the goals of the Advisory Opinion procedure: the dialogue between courts and strengthening the constitutional role of the European Court. On these issues the Court itself dedicates some preliminary considerations in the Opinion itself. It states that the very goal of the procedure is not to transfer the dispute to the European level, but rather to provide guidance to national courts, so that the latter can adjudicate on the matter. Entirely in line with the subsidiarity principle, domestic courts can use (or not use) the advice of the European Court as they see fit. In trying to formulate relatively general answers and identify weighing factors, the Court in Strasbourg does really try and put on its constitutional cloak. At the same time, this is done in a very delimited way: opinions under this procedure must be confined to “points directly connected to the proceedings at domestic level” (para. 26). The efficiency gains are then made through European guidance that national courts can subsequently use in similar cases. Those who were hoping for a type of lengthy general comment, in the vein of United Nations human rights treaty bodies, on the issue of gestational surrogacy arrangements will thus be disappointed by this relatively short Opinion of the Court.

Apart from these explicit considerations in the text of the Opinion itself, the Court also undertakes an exercise in judicial signalling to ECHR State Parties in other ways. The first issue of note for a genuine dialogue is of course that the request for an Opinion was accepted by the Court – a rejection of the very first attempt – the Court is not obliged to accept all request – would have been very awkward signposting, especially as many States have not yet ratified Protocol 16. 

Secondly the timing is notable: the Court dealt with the issue in a very swift way (virtually all judgments of the Court take much longer), with less than six month elapsing between request for and delivery of the Opinion. Although one may note that by now the twin girls, born in October 2000, are now 18 year-olds – that is how long legal battles may take – and the Court de Cassation has not even decided yet of course. Those six months were used to provide maximum input, as allowed under Protocol 16 (input was received from the Mennesson family, as well as written interventions by three other State Parties and several other institutions and NGOs), but without losing time by way of an oral hearing. The comparative-law research was also done within that relatively short-time span. The signal here to domestic court seems to be: yes, using this procedure will halt your domestic case, but this pause will be kept as short as possible. The signal to possible interveners seems to be: input welcome, but swiftly please. And the Court also in this first Opinion explicitly states about such written observations that “its task is not to reply to all grounds and arguments submitted to it or to set out in detail the basis for its reply” (para. 34). Again, the self-identified role here seems to be: trying to be useful to domestic courts, swiftly and to the point.

In conclusion, the Advisory Opinion certainly does not solve all issues related to gestational surrogacy.  But what it does represent is an attempt to provide useful and relatively quick decision-making tools, handed down by an international court in its constitutional cloak to the highest domestic courts that find it useful to ask for it.

This blogpost is a cooperation between the IACL-AICD Blog and the ECHR Blog.

Tuesday, 23 April 2019

Conference on Loyal Co-operation in the ECHR System

The University of Liverpool School of Law and Social Justice is organizing the conference 'Loyal Co-Operation within the System of the European Convention on Human Rights' on 10 and 11 May. The extensive two-day programme features new research presentations from scholars across Europe and several Strasbourg judges will participate in the discussions. The conference will go into key questions of co-operation with and resistance to Strasbourg institutions by ECHR State Parties, and will include several country case studies. The full programme can be found here. Registration is open now and can be done online.

Wednesday, 17 April 2019

Case-Law Guide on Article 17 ECHR

In its series of case-law guides, the Court has published online a new one on Article 17, the European Convention's provision on the abuse of rights. This Article provides: 

"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." 

The case-law guides give an overview the Court's main judgments, organised by Convention article. In this case the overview is pretty complete considering the relatively limited case-law. The guide on Article 17 is currently only available in English. A full overview of the existing case-law guides can be found on the Court's website. Their systematic presentation and the inclusion of web links to all the cited judgments make it an easily navigable and very useful resource.

Monday, 15 April 2019

New ECHR Articles in Human Rights Law Review

The first issue of 2019 of the Human Rights Law Review (vol. 19, no. 1) includes a number of ECHR-focused articles:

* Alice Donald & Anne-Katrin Speck, ‘The European Court of Human Rights’ Remedial Practice and its Impact on the Execution of Judgments’, pp. 83-117:

'This article analyses the developing approach of the European Court of Human Rights to the indication of specific non-monetary individual or general remedies and the impact of this practice on the execution of its judgments. It draws on interviews with Judges of the Court and officials in Council of Europe institutions, and a statistical analysis of pilot judgments and judgments that invoke Article 46 of the European Convention of Human Rights delivered between 2004 and 2016. The article argues that the Court’s remedial practice is fluid and pragmatic, with differences of perspective between Judges. It discusses the factors that influence judicial decision-making, and examines the implications of the Court’s remedial approach both for its ‘horizontal’ relationship with the Committee of Ministers and its ‘vertical’ relationship with states. It concludes that, from both these perspectives, the door is open to continued evolution, if not revolution, in the Court’s remedial practice.' 

* Sofia Galani, ‘Terrorist Hostage-taking and Human Rights: Protecting Victims of Terrorism under the European Convention on Human Rights’, pp. 149-171:

'The 2004 Beslan school siege by Chechen gunmen and the Russian responses to the attack demonstrated the tremendous impact a terrorist attack and a state’s anti-terrorist operations can have on the human rights of victims. The violations of the victims’ human rights were examined by the European Court of Human Rights in Tagayeva v Russia (2017), which this article argues is a landmark case in that the Court placed the human rights of victims at the centre of its concerns and reinforced the idea that states remain bound by the European Convention on Human Rights in large-scale anti-terrorist operations. The principal goal of this article is to examine the positive and procedural obligations of states towards the victims as outlined by the Court and to assess how this case might shape future responses to terrorist attacks. It will be argued that when states respond to a terrorist hostage-taking, they have to focus primarily on the human rights of hostages abducted within or beyond their borders on land or at sea.' 

* Philippe Yves Kuhn, ‘Reforming the Approach to Racial and Religious Hate Speech Under Article 10 of the European Convention on Human Rights’, pp. 119-147:

'At present the European Court of Human Rights employs a two-track approach to racial hate speech and religiously offensive speech, respectively. Further, the jurisprudence under Article 10 of the European Convention on Human Rights currently privileges journalistic or scholarly, over creative or artistic, forms of religious criticism. However, in this article it is argued that the ‘gratuitously offensive’ test for religiously offensive speech requires reform, while a consistent approach to racial hate speech cases is equally necessary. By building on Waldron’s account of the harm in hate speech, a single Article 10 test for both racial and religious hate speech is proposed. This new test focuses on harm in the sense of seriously undermining the target’s assurance to a status of equal worth in the community. It abandons the unhelpful race/religion dichotomy in the Article 10 jurisprudence, and is more responsive to the political reality of tense public discourse surrounding issues of race and religion in Europe in the wake of the Syrian refugee crisis and Brexit.' 

Thursday, 11 April 2019

New Judges Elected in Respect of Turkey and Malta

Earlier this week, the Parliamentary Assembly of the Council of Europe (PACE) elected two new judges to serve 9-year terms at the European Court of Human Rights. In respect of Malta, Lorraine Schembri Orland was elected with an absolute majority of votes cast. Judge Schembri Orlan currently presides over Malta's Civil Court, which also has jurisdiction over human rights matters. She has been very active throughout her career on non-discrimination and women's rights issues, co-drafting legislative reforms to integrate the norms of the UN's CEDAW Convention into Maltese law, advising on gender mainstreaming in the public sector and actively combatting domestic violence. She is also the first woman ever to be elected as judge to the European Court in respect of Malta. This was statistically guaranteed, as Malta submitted a list of three women to PACE (selected out of four timely applying candidates). 

There is no small irony here, as Malta became infamous in this context in 2009 during the last elections, when its lists of submitted candidates were rejected three times for featuring only male candidates. PACE deputies were very concerned about the argument of the Maltese government at the time that no qualified women could be found in such a small State Party for the position of a judge in Strasbourg. The policy of PACE is that "to ensure gender-balance on the Court, states are also asked to put forward at least one candidate from "the under-represented sex" unless there are exceptional circumstances." This in turn was the result of the European Court itself - in the context of that same discussion with Malta- issuing one of its first advisory opinions, in which it held that exceptional circumstances should be allowed for (no blanket ban by PACE on lists with only candidates of one sex, in short). As a pierce of context, currently about one third of the Court's judges is female, so an all-female list, like the current one was allowed.

In respect of Turkey, dr Saadet Yüksel was elected as the new judge, also with an absolute majority of votes. She is currently chair of the constitutional law department at Istanbul University and an associate professor there. One may note that all three candidates put forward by the Turkish government were academics and thus none came from the currently much-discussed Turkish judiciary. 

Good luck to both judges for the start of their work in Strasbourg later this year!

Monday, 8 April 2019

Book on Inter-State Complaints and the ECHR

I somehow missed to highlight this earlier, but last year an important book on the often-overlooked other contentious role of the Court (beyond deciding in individual cases) was published. Isabella Risini has written The Inter-State Application under the European Convention on Human Rights. Between Collective Enforcement of Human Rights and International Dispute Settlement in the series 'International Studies in Human Rights' of Brill-Martinus Nijhoff, This is the abstract:

'The Inter-State Application under the European Convention on Human Rights provides the first comprehensive monograph about the State-to-State human rights enforcement mechanism. The functions of the mechanism include also dispute settlement aspects, which are related to the compulsory jurisdiction of the Strasbourg Court. The study provides a full account of the development of the Inter-State Application under Article 33 ECHR and puts its case law in the relevant historical and institutional context. The analysis concludes with detailed reform considerations which are situated within the discussion about the role of the European Court of Human Rights. The focus lies on the possibility to address and improve systemic human rights deficits beyond the single case. The Court’s growing inter-State docket evidences the need for legal certainty.' 

    Tuesday, 2 April 2019

    Linos-Alexandre Sicilianos New President of the Court

    Although announced on April fools' day by the Court, one may assume this is serious and real news: the Court has elected from its midst Linos-Alexandre Sicilianos to serve as its new President. Judge Sicilianos had already been one of the Court's Vice-Presidents since 2017 and a judge at the Court since 2011. Before joining the Court, he was a well-known academic expert on human rights in Greece, serving amongst others on the UN Committee on the Elimination of Racial Discrimination. He will succeed the Court's current President Guido Raimondi on 5 May, who has headed the Court for around 3,5 years. Since terms rum for nine years at the Court and are non-renewable, Sicilianos will be President for just over a year, until 18 May 2020 at most (he started his term on 18 May 2011).

    The Court also elected ECHR a new Vice-President, the judge in respect of Iceland, Robert Spano. And a new Section President was also elected: Ksenija Turković, the judge in respect of Croatia. They will also start in their new functions on 5 May.

    Strasbourg watchers might surmise two things from the above: the Court's Presidents in the last decade have served for relatively short terms (between one and four years) and that has to do directly with the non-renewable terms of nine years. Thus, long terms such as the one of former President Luzius Wildhaber (1998-2007) have - even if theoretically still possible - become quite unlikely. Specifically, because one may assume the Court's judges will always want to elect someone amongst their midst with a solid experience in the inner workings of the Court and that takes a few years to acquire. Secondly, one may also infer that Robert Spano may stand good chances next year, as his term runs for several more years and he has just been appointed Vice-President. But then the judges on the Court may also decide it is time to elect in the near future for the first time a female judge to head the Court. Enough to occupy the minds of Strasbourg afficionados.

    Greek newspaper Ekatherimini mentioned that the election was hailed by the Ministry of Justice as a great honour for Greece and highlighted that Sicilianos is the first Strasbourg Court president from that country (one may note that, even though Ekatherimini is a quality newspaper, it sadly thinks the European Court of Human Rights is part of the EU....).

    For now, all the best wishes of success to the Court's new President!

    Monday, 25 March 2019

    New Book on General Principles of the ECHR

    My Utrecht University colleague and SIM fellow professor Janneke Gerards has just published her newest book General Principles of the European Convention on Human Rights with Cambridge University Press. It is available online now as an e-book and presents a reflection of her many years of meticulous study of the case-law and work of the European Court. Setting it apart from most ECHR overviews, this concise yet very nuanced work does not present the Convention as a sequence of substantive rights. Rather, it takes a cross-cutting approach by describing and analysing how the Court interprets and applies rights. It thus goes into the core interpretative principles developed by the Court, ranging from how it assess restrictions on rights to famous notions such as positive and negative obligations and the margin of appreciation. Thus, it presents a very precise and well-grounded way into the ECHR, a great device both for teaching at the advanced level as well as for research. As one of the judges of the European Court remarked, Janneke Gerards is "one of the best Court-watchers of our time" - I could not agree more; I literally know no one outside the Court who is so well-informed about the by now massive volume of its jurisprudence. Recommended! This is the abstract:

    'The European Convention on Human Rights is one of the world's most important and influential human rights documents. It owes its value mainly to the European Court of Human Rights, which applies the Convention rights in individual cases. This book offers a clear insight into the concepts and principles that are key to understanding the European Convention and the Court's case-law. It explains how the Court generally approaches the many cases brought before it and which tools help it to decide on these cases, illustrated by numerous examples taken from the Court's judgements. Core issues discussed are the types of Convention rights (such as absolute rights); the structure of the Court's Convention rights review; principles and methods of interpretation (such as common ground interpretation and the use of precedent); positive and negative obligations; vertical and horizontal effect; the margin of appreciation doctrine; and requirements for the restriction of Convention rights.'

    Congratulations, Janneke!