Friday, 16 November 2018

Guest Blog : Minimalist Compliance in the UK Prisoner Voting Rights Cases

It is my pleasure to introduce another guest blog to you - this time by Andreas von Staden of the University of Hamburg. He has made an insightful analysis of Strasbourg's prisoner voting rights cases from the perspective of implementation, building on the findings of his recent monographPlease find his views below:

Pushing the Envelope: Minimalist Compliance in the UK Prisoner Voting Rights Cases

Andreas von Staden

A long, arduous journey may soon come to an end—at least for the time being. It is now over thirteen years ago that the European Court of Human Rights (ECtHR), in the 2005 judgment of Hirst v. The United Kingdom (no. 2), declared the UK’s blanket ban on prisoner voting to be disproportional and in violation of Article 3 of Protocol No. 1 to the European Convention on Human Rights (ECHR). What initially appeared to be a simple matter of executing a rather straightforward judgment by making appropriate amendments to the domestic law in question—Section 3 of the Representation of the People Act 1983—soon turned into a fundamental political dispute over the proper allocation of competences between the ECtHR and UK, with the latter arguing that the Court had forayed too much into matters that were more appropriately decided at the national level. A period in which the UK and other states stressed the principle of subsidiarity and states’ margin of appreciation in implementing the ECHR ensued, resulting, inter alia, in the adoption of Protocol No. 15 (2013) which will insert an express reference to the margin into the ECHR’s preamble. Without much fanfare, and with public attention transfixed by the BREXIT drama, the UK recently adopted a set of remedial measures which it considers sufficient to close the prisoner voting rights cases, with the Committee of Ministers seemingly concurring. In this contribution, I argue that these measures fail to respond adequately to the judgments and that if the Committee indeed adopts a final resolution on their basis, this would represent a recalibration of applicable compliance standards and an attempt to override parts of the Court’s judgments.

Liberal Democracies and the European Court of Human Rights
In a book published last summer titled Strategies of Compliance with the European Court of Human Rights, I had argued that liberal democracies, notwithstanding recurrent delays and occasional foot-dragging, will generally make an effort eventually to comply with adverse judgments issued against them. In choosing measures to comply with a judgment, or set of judgments, however, governmental actors they should be expected to remain rational actors and seek to minimize political and/or material costs or to retain some decision-making authority for themselves, resulting in what I termed patterns of “minimalist compliance.” I tested this expectation against empirical evidence drawn from two comprehensive case studies of two unquestionable liberal democracies, Germany and the United Kingdom. The evidence from both countries generally appeared to buttress the theoretical expectations and, by fall 2017, in nearly all cases examined at least some meaningful steps had been taken to move towards achieving compliance—save for the prisoner voting rights cases involving the UK. I noted that “Hirst (no. 2) and its clone cases are the one set of judgments in which the stipulated compliance pull has … failed to bring about any, if only minimally compliant, remedial response to the Court’s decision” (140). For the study as a whole, this led me to conclude that “[t]he recurrent deferral of adopting legislative measures to remedy the violation identified in the UK prisoner voting cases … shows … that … voluntary compliance may reach its limits even in the case of liberal democracies when the intervention of the Court into domestic law and policy is seen as being excessively activist and “illegitimate” to the extent that it appears to usurp powers of self-government that are believed to be more properly located and exercised at the national level” (206).
Shortly after the manuscript had been finalized, it transpired that new developments were afoot in the prisoner voting rights cases and it now appears that the Committee of Minister’s supervision of the prisoner voting rights cases is on the verge of being ended, signaling the recognition that sufficient compliance has been achieved. But, as will be shown below, the remedial measures adopted do not address the root cause of the violations found, namely, their statutory source, but instead appear to be an attempt to minimize minimalist compliance by pushing the envelope as to what is being considered sufficient compliance by the Committee of Ministers.

Remedying the Prisoner Voting Rights Violations: The Present Solution
In its recent Action Report on the Hirst (no. 2) group of cases, dated September 1, 2018, the UK informed the Committee of Ministers that it had implemented three remedial measures to address the violations of Article 3 of Protocol No. 1 found by the Court and had informed all prison authorities accordingly in mid-2018. The first two policy changes extend the right to vote to prisoners that are released on temporary license, normally in order to be able to take up employment outside of prison, and to prisoners released on Home Detention Curfew. The UK emphasized that both forms of release usually apply to prisoners with short prison terms and that the fact that “prisoners which are in the process of being reintegrated back into society … can vote” reflected the “proportionality” of the UK’s voting ban regime (paras. 7 & 11), which already provides for the retention of the right to vote for three other inmate groups (those in prison on remand, for contempt of court, and for default in paying fines). The third policy change seeks to remedy the failure to inform those sentenced to prison terms that they will be disenfranchised during that time; that information is now included in the Warrants of Committal in England, Wales, and Northern Ireland, and conveyed in different form in Scotland. In light of these changes, the UK concluded that the “Hirst group of case can now be closed” (para. 16).
The UK had announced this selfsame set of measures to the Committee of Ministers in an Action Plan in November 2017 to probe whether the Committee would consider them sufficient for ending its supervision and had declared that it would implement them if endorsed by the Committee. The proposed “remedial triad” was the result of an extended period of consultations, noted in a 2016 Action Plan, during which the UK expressly sought to identify options that would enable it to address issues raised in Hirst (no. 2) without a legislative amendment, an option that continued to be opposed by Parliament. The UK’s assertion that the identified “administrative measures are the best approach to credibly, effectively and swiftly address the Hirst group of cases” (2017 Action Plan, para. 10) apparently had some purchase in the Committee of Ministers which in a related decision noted the proposed package “with satisfaction” and “considered that, in light of the wide margin of appreciation in this area, these measures respond to the European Court’s judgments in this group of cases.” The Secretariat had made the same assessment. A final resolution has not yet been adopted, but should, against this backdrop, not be too long in the making.

Identifying Causes and Consequences of the Violation: What the Court Had Said
But can the conclusion that “these measures respond to the European Court’s judgments in this group of cases” stand muster in light of the Court’s findings and ratio decidendi? Specifically, can there be full compliance without a legislative amendment of the relevant domestic statutory provision—Section 3 of the Representation of the People Act 1983—which provides that “[a] convicted person during the time that he is detained in a penal institution in pursuance of his sentence […] is legally incapable of voting at any parliamentary or local election”?
If one takes the Court’s words seriously, then the above conclusion appears difficult to sustain. In Hirst (no. 2), the Court had linked the violation of Article 3 of Protocol No. 1 specifically to the “blunt” and “indiscriminate” nature of section 3 of the 1983 Act, given that the above “provision imposes a blanket restriction on all convicted prisoners in prison […] irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances” (para. 82 (emphases added in this and the following quotes). In the 2010 pilot judgment of Greens & M.T., triggered by the UK’s inaction since Hirst (no. 2), the Court’s argument is even more straightforward: The ECtHR notes that the set of applications at issue in Greens & M.T. was due specifically to the failure to amend the 1983 Act and to thereby “put an end to the current incompatibility of the electoral law with Article 3 of Protocol 1” (paras. 78 & 111). Reaffirming that “the general, automatic and indiscriminate restriction on the right to vote imposed by section 3 of the 1983 Act must be seen as falling outside any acceptable margin of appreciation, however wide that margin may be,” the Court notes that “[i]t is […] clear that legislative amendment is required in order to render the electoral law compatible with the requirements of the Convention” and that “the respondent State must introduce legislative proposals to amend section 3 of the 1983 Act … with a view to the enactment of an electoral law to achieve compliance with the Court’s judgment in Hirst […]” (paras. 110, 112 & 115). In the three sets of clone cases—Firth & Others (2014), McHugh & Others (2015), and Millbank & Others (2016)—the Court subsequently linked the finding of a violation to the fact that no amendment of Section 3 of 1983 Act had yet occurred, expressly noting once again in the last judgment that “the statutory ban on prisoners voting in elections is, by reason of its blanket character, incompatible with Article 3 of Protocol No. 1” (para. 9).
Against this backdrop, I submit that the Court’s position can be restated as follows:
»        The Court came to the conclusion that the current regime was incompatible with the Convention and outside of the UK’s generally wide margin of appreciation in full knowledge of the parameters of the current regime, i.e., the regaining of voting rights upon release from prison (including early release) and the continued ability to vote of those in prison on remand, for contempt of court and for failure to pay fines.
»        The finding of a Convention violation related expressly to the disproportionality of the blanket voting ban as it applied to prisoners while in prison, not to the fact that certain categories of offenders on temporary license or subject to home detention curfew—and thus no longer physically in prison all of the time—had not been re-enfranchised. (This also seems to be the position in Scoppola v. Italy (no. 3) (2012), para. 96, where the Court argued that “disenfranchisement [that] affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence” lacks proportionality).
»        Since the violation caused by the blanket ban resulted directly from applicable legislation, Section 3 of the 1983 Act, compliance with the judgments required a change of that legislation.

Recalibrating Compliance in the ‘Age of Subsidiarity’
The UK’s eventual response to the prisoner voting rights judgments can be understood as an archetypical example of minimalist compliance: As a liberal democracy, it would have been difficult for the United Kingdom to continue to resist taking just any remedial measures in these cases and thereby to opt for open and persistent non-compliance. The fact that the United Kingdom continued to engage with the Committee of Ministers and the Council of Europe’s Department for the Supervision of Judgment of the ECtHR to find a solution suggests that the legal commitment to comply with the Court’s judgments enshrined in Article 46 (1) ECHR exerted some normative pull effect, given the Council of Europe’s lack of enforcement means beyond naming-and-shaming (the effectiveness of which, it should be noted, is ultimately also based on shared norms and values). At the same time, in light of domestic political majorities being consistently against enfranchising prisoners, it was to be expected that the UK would seek to minimize the material and especially political costs of liberalizing prisoner voting rights, as no UK government would reap any benefits at the polls for doing so.
Just how minimalist the eventual response turned out to be is still remarkable. The UK’s remedies provide for only very marginal adjustments to the current prisoner voting rights regime—The Guardian had estimated in December 2017 that merely about one hundred people would benefit from the administrative changes—and stay far behind earlier domestic proposals such as enfranchising those with prison sentences of less than six or twelve months (see e.g. the 2013 Joint Committee on the Draft Voting Eligibility (Prisoners) Bill’s report at paras. 2 & 227). What is particularly notable is that the implemented remedial measures would not have prevented the finding of violations in most of the cases before the Court which, judging on the basis the available case information, concerned applications largely from people actually in prison at the time of a relevant election from which they were barred, not subject to temporary license or home detention curfew. Against this background it seems all but certain that new applications by people with prison sentences at the shorter end of the spectrum will come to the Court after the next elections to which the ban applies have been held, giving the ECtHR the opportunity to clarify its earlier jurisprudence and to assess the UK’s slightly modified prisoner voting rights regime in its light.
Perhaps even more surprising than the sheer minimalism of the remedial measures adopted by the UK is the fact that the Committee of Ministers and the Council of Europe Secretariat endorsed them as being sufficient to achieve compliance. If the analysis that the current remedial triad would not have prevented the bulk of the violations found in the Hirst group of cases is correct, then the Committee should have withheld its endorsement: Rule 6 (2) of its own Rules for the Supervision of the Execution of Judgments stipulates, after all, that the Committee, when supervising the execution of judgments, shall ascertain, inter alia, whether “general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.” This requirement appears not to have been met. Instead the Secretariat and Committee highlighted the Court-affirmed “wide margin of appreciation in this area”—notwithstanding the fact that the Court, as noted, had already factored in this wide margin in its findings of violations of the Convention and had, in the context of the judgments’ execution, linked it specifically to the introduction of “legislative proposals” (see Greens & M.T., para. 114)—and both seemed content that the voting ban could now be seen as no longer being of a blanket nature since some offenders that were formally subject to a prison sentence could vote again as a result of spending at least some of their time outside of prison. The Secretariat also referred to the Court’s statement that “a wide range of policy alternatives are available to the Government in the present context” (Greens & M.T., para. 114) as support for the current solution, without addressing, however, how the chosen alternatives relate to the ECtHR’s finding that the violation had a legislative source and thus implied a legislative remedy.
At least two (not mutually exclusive) explanations for the Committee’s (and the Secretariat’s) assessments suggest themselves. The first is of pragmatic character: The Committee may simply want to put an end to what Ed Bates has labeled the “prisoner voting saga” and possibly to cut the UK, a long-time democratic member of the Convention system, some slack, in light of many much graver ECHR violations by some other states which had begun to justify their own non-compliance by reference to the UK’s inactivity in the prisoner voting rights cases. The second explanation is more principled: The Committee—composed of member state representatives—might want to signal that, in contrast to the Court’s recurrent foregrounding of a legislative solution, it considers non-legislative changes sufficient to bring the UK into compliance with the Convention. This move could be read as intentionally juxtaposing the Committee’s interpretation of what is required by the Convention to be compliant with Article 3 of Protocol No. 1 against the Court’s. Given that the governance arrangement spawned by the ECHR does not provide for the equivalent of legislative overrides, the Committee might want to use its decision in the Hirst group of cases to signal to the Court that it considers the latter’s jurisprudence with respect to prisoner voting rights as too activist and the margin of appreciation granted to states as too narrow. If this interpretation is correct, then the Committee’s endorsement of the UK’s remedial triad might be seen as another manifestation of what Judge Robert Spano had pithily termed the “age of subsidiarity” in which states assert. or seek to reclaim, greater decision-making freedom for national authorities vis-à-vis international institutions. Notable in this respect is also the fact that the likely resolution of the prisoner voting rights cases would follow on the heels of the 2018 High-level Conference on Reform of the Convention System which in its Copenhagen Declaration repeatedly emphasized subsidiarity and the margin of appreciation as core operational principles within the European human rights system (see paras. 4, 7, 10, 13, 28 & 31).
Whatever the concrete reasons driving the Committee’s decision, it seems all but certain that ending the supervision of the Hirst group of cases will not end the Court’s and the Committee’s engagement with the issue of prisoner voting rights in the UK. It is only when the Court addresses new, post-reform cases that it will become clearer whether the Committee and the UK succeeded in setting minimalist terms for compliance in this issue area or whether the Court will find the slightly modified regime still to be in violation of the Convention. If the latter is the case, then this could set the stage for a possibly lengthy struggle between the Court and the Committee over the final interpretive authority with respect to the requirements of compliance within the European human rights regime.

Friday, 9 November 2018

Book on ECHR as Tort Law

Stefan Somers (Free University Brussels) has written a new book on a less often studied aspect of the ECHR system - its use as tort law. The book, published with Intersentia, is entitled 'The European Convention on Human Rights as an Instrument of Tort Law'. This is the abstract: 

'Tort law and human rights belong to different areas of law, namely private and public law. Nevertheless, the European Convention on Human Rights increasingly influences national tort law of signatory states, both on the vertical level of state liability and on the horizontal level between private persons.

An individual can appeal to the European Convention on Human Rights in order to challenge national tort law in two situations: where he is held accountable under national tort law for exercising his Conventions rights, and where national law does not provide effective compensation in accordance with Article 13. The second method is strongly connected with the practice of the European Court of Human Rights to award compensations itself on the basis of Article 41. A compensation in national tort law is considered to be effective according to Article 13 when it is comparatively in line with the compensations of the European Court of Human Rights granted on the basis of Article 41. This raises the important question as to how compensations under Article 41 are made by the European Court of Human Rights.

The European Convention on Human Rights as an Instrument of Tort Law examines the entanglement of public and private and national and transnational law in detail and argues that while the Court uses a different terminology, it applies principles that are very similar to those of national tort law and that the Court has developed a compensatory practice that can be described as a tort law system.'

Monday, 29 October 2018

ECHR Articles in Latest HRLR

The latest issue of the Human Rights Law Review (Vol. 18, No. 3, September 2018) includes no less than four ECHR related Articles:

'The current era in the life of the European Convention on Human Rights is a transformative one. The author, a serving judge of the Strasbourg Court, thus finds it opportune to look back in time, consider the present and reflect on the future. In the article, it is argued that the last 40 years or so constituted the Court’s ‘substantive embedding phase’. This phase has now in general shifted towards a new historical era, the ‘procedural embedding phase’, which is analysed in detail. During this latter phase, the Court has begun to realign its project attempting to trigger increased engagement with the Convention by national authorities using a mechanism termed ‘process-based review’. The overall aim is to secure a higher and more sustainable level of Convention protections within the States subject to European supervision. However, within this process-based review mechanism, national decision-makers have to be structurally capable of fulfilling the task of effectively securing human rights. This means that the foundations of the domestic legal order have to be intact. States that do not respect the rule of law cannot expect to be afforded deference under process-based review in the age of subsidiarity.'

'Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further benefit from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.'

'The Council of Europe has long provided protection for the rights of persons with disabilities, primarily by means of the European Convention on Human Rights and the case law of the European Court of Human Rights. However, in the past few years the United Nations Convention on the Rights of Persons with Disabilities has profoundly changed that case law, assuming a prominent role in the Court’s interpretation of disability rights. Against this background, the article examines the influence of the UN Convention on the case law of the European Court of Human Rights, as well as on the new Council of Europe Disability Strategy 2017–2023.'

'On 15 July 2016, an attempted military coup took place in Turkey, which left 246 dead and 2194 wounded, and sent a shockwave through Turkish society. The response from Ankara followed swiftly. On 21 July 2016, the Turkish Government imposed a nationwide state of emergency, and notified its intention to derogate from the European Convention on Human Rights (ECHR). Numerous emergency decrees were promulgated, providing for the closure of more than 3000 schools, media outlets and so on, as well as the detention and arrest of several tens of thousands of individuals. One of the key features of the Turkish Government’s response concerns the dismissal, and exclusion from public service, of more than 130,000 judges, prosecutors, military personnel, police officers, teachers and other civil servants. Having regard to a number of recent admissibility decisions which make clear that the European Court of Human Rights is unlikely to address the matter soon, this article critically examines this unprecedented ‘purge’ from the perspective of ECHR law. It specifically focuses on the application of Article 8 of the ECHR and Article 6 together with Article 13 of the ECHR, drawing analogies with the European Court’s case-law on lustration proceedings. It finds that, even having regard to the exceptional circumstances at hand as well as the Turkish derogation from the ECHR, the Turkish ‘purge’ of public servants cannot be reconciled with the state’s obligations under the ECHR.'

Thursday, 25 October 2018

Conference on Detained Persons and the ECHR

The European Prison Litigation Network (EPLN) is organising  the international conference “Overcoming obstacles to the access of detained persons to rights and the judge: European perspectives” at the European Court of Human Rights in Strasbourg on 6 and 7 December. The full programme can be found here. The conference, in which two of my Utrecht University colleagues are also involved, focuses on the following:

'The conference will be opened by Guido Raimondi, President of the Court. With the intervention of judges and members of the ECtHR, researchers, law practitioners and international specialists of the penal and penitentiary field.

During the conference, the situation of access to rights and to court of prisoners in 10 countries of the EU (Belgium, Bulgaria, the Czech Republic, Italy, France, Germany, the Netherlands, Poland, Spain, United Kingdon) will be presented, as well as in the United States, Ukraine and Russia.

The discussion will also be articulated in several thematic sessions around such questions as the impact of austerity policies on the protection of rights in prison, counter-terrorism measures and their consequences on the defence of fundamental rights of detainees, or the mobilization and role of civil society players for overcoming the isolation of prisoners.'

Admission is free upon registration at: ECHRPrisonConference2018 at .

Wednesday, 24 October 2018

Call for Papers on 'the Greek Case' after 50 Years

Next year will mark 50 years since the famous 'Greek case' in the ECHR system, when the Netherlands, Denmark, Norway and Sweden lodged a complaint with the (then still existing) European Commission of Human Rights against the military colonels' regime in Greece. A unique inter-state complaint, that is still very topical in these times when again the question may be asked how the Council of Europe and its member states can act when states travel the road of authoritarianism. The Athens-based institutes of the four applicant countries at the time have now joined forces to organise an international conference entitled 'The ‘Greek Case’ in the Council of Europe: A Game Changer for International Law and Human Rights?' This is part of the content explanation by the organisers:

'In 1967 Denmark, Norway, and Sweden – later joined by the Netherlands – used the European Commission on Human Rights (ECHR) system against the Greek Colonels. On 12 December 1969 Greece withdrew from the CoE to avoid expulsion. The reports of the ECHR constituted a paradigmatic condemnation of the regime by an international body. In light of the growing debates about the usefulness and impact of international pressure on authoritarian states for democratization and the rule of law, the so-called ‘Greek case’ emerges as an important moment in the history of international law, human rights, and transnational justice. The case marked the first time a member of the CoE risked expulsion because of human rights violations. Thus it became one of the pioneer interstate cases over fundamental rights in European human rights law, generating important discussions about the Junta’s brutal regime in other European parliaments. The ‘Greek case’ was also exceptional in that there were no apparent national interests (at least at first sight) on behalf of the plaintiff countries. A decisive moment in the protection of human rights, it was, moreover, instrumental in shaping human rights standards and policy, particularly with regard to torture. Finally, it established non-governmental transnational movements, such as Amnesty International, and solidarity campaigns as important players in international law and politics.'

The conference aims to bring together both early-career researchers and established specialists and invites papers across disciplines, including history, politics, law and international relations, human rights trauma studies, social movement and European studies. In order to do so, a call for papers has been launched. Abstracts for 20-minute papers should be submitted in English (300 words maximum), accompanied by a 100-word biographical note, contact information, and affiliation; independent scholars are welcome to submit.The deadline for submission of proposals is Monday, 14 January 2019. 

Monday, 22 October 2018

Short Introduction to the ECHR

For those readers who want a quick and short introduction into the system of the European Convention on Human Rights, the Council of Europe has produced a new and concise book, authored by Martyn Bond ( a journalist and former European civil servant). It is entitled 'An introduction to the European Convention on Human Rights' and is available both as hard copy and as pdf, in English and in French. Useful for beginners who want a first glance at how the Convention and its supervisory mechanisms work. This is the abstract:

'The right to life, prohibition of torture, freedom of thought, conscience and religion, freedom of expression, the right to marriage... Did you know that these rights and many others are protected by the European Convention on Human Rights?

The author of this book illustrates each of these rights in a simple and clear way, using specific examples. He also sets the action of the European Court of Human Rights in the wider context ofCouncil of Europe activities pursuing the same ideals.'

Friday, 12 October 2018

Book on ECHR and General International Law

Professor Anne van Aaken (University of St. Gallen) and ECtHR Judge Julia Motoc (also connected to the University of Bucharest) have published the edited volume 'The European Convention on Human Rights and General International Law' in the European Society of International Law Series, with Oxford University Press. The book features both academics and judges at the European Court of Human Rights. This is the abstract:

'The European Court of Human Rights is one of the main players in interpreting international human rights law where issues of general international law arise. While developing its own jurisprudence for the protection of human rights in the European context, it remains embedded in the developments of general international law. However, because the Court does not always follow general international law closely and develops its own doctrines, which are, in turn, influential for national courts as well as other international courts and tribunals, a feedback loop of influence occurs.

This book explores the interaction, including the problems arising in the context of human rights, between the European Convention on Human Rights and general international law. It contributes to ongoing debates on the fragmentation and convergence of international law from the perspective of international judges as well as academics. Some of the chapters suggest reconciling methods and convergence while others stress the danger of fragmentation. The focus is on specific topics which have posed special problems, namely sources, interpretation, jurisdiction, state responsibility and immunity.'

Thursday, 4 October 2018

Handbook on Implementation of ECtHR Judgments

The European Implementation Network has published a new handbook entitled 'Implementation of Judgments of the European Court of Human Rights - A Handbook for NGOs, injured parties and their legal advisers'. The handbook is a great 'how-to" guide for civil society organisations interested in the post-judgment implementation phase. It is freely available online. This is what EIN says about it:

"For many NGOs wanting to support implementation of ECtHR judgments, the Strasbourg judgment execution process presents daunting challenges. Although there is accessible information about the outlines of the process and the general role of NGOs, engaging effectively requires much more: a detailed understanding how the process works, (for example, how cases are categorised, the differing procedures under which they may be treated, the different stages of the process), and a clear grasp of what to say and when to say it. Without this understanding, NGO submissions can lack impact, even for such basic reasons as including the wrong type of information or the information being submitted too late. 

EIN’s new handbook is an important step towards demystifying the process. Prepared with the benefit of input from experienced NGOs during implementation training workshops and with detailed technical advice by the Department for the Execution of Judgments, it provides comprehensive guidance for NGOs, injured parties and their legal advisers. It sets out both a clear description of the Council of Europe’s supervision procedure, and a detailed step-by-step guide to how NGOs and injured parties can engage with this procedure most effectively.

There is wide concern that in many Council of Europe member States implementation of ECtHR judgments is all too often inadequate. NGOs have a vital role to play in improving the quality of implementation. But, in part because of the “black box” that has existed around the judgment execution process, NGOs have intervened in only a small fraction of cases. EIN hopes that this handbook will enable a significant improvement in both the quantity and quality of submissions by NGOs and thereby make a real contribution to improving implementation of ECtHR judgments."

Wednesday, 5 September 2018

New Book on Strategies of Compliance and the European Court

Andreas von Staden (University of Hamburg) has published the new book Strategies of Compliance with the European Court of Human Rights. Rational Choice Within Normative Constraints, in the Pennsylvania Studies in Human Rights Series. This is the abstract: 

'In Strategies of Compliance with the European Court of Human Rights, Andreas von Staden looks at the nature of human rights challenges in two enduring liberal democracies—Germany and the United Kingdom. Employing an ambitious data set that covers the compliance status of all European Court of Human Rights judgments rendered until 2015, von Staden presents a cross-national overview of compliance that illustrates a strong correlation between the quality of a country's democracy and the rate at which judgments have met compliance. Tracing the impact of violations in Germany and the United Kingdom specifically, he details how governments, legislators, and domestic judges responded to the court's demands for either financial compensation or changes to laws, policies, and practices.

Framing his analysis in the context of the long-standing international relations debate between rationalists who argue that actions are dictated by an actor's preferences and cost-benefit calculations, and constructivists, who emphasize the influence of norms on behavior, von Staden argues that the question of whether to comply with a judgment needs to be analyzed separately from the question of how to comply. According to von Staden, constructivist reasoning best explains why Germany and the United Kingdom are motivated to comply with the European Court of Human Rights judgments, while rationalist reasoning in most cases accounts for how these countries bring their laws, policies, and practices into sufficient compliance for their cases to be closed. When complying with adverse decisions while also exploiting all available options to minimize their domestic impact, liberal democracies are thus both norm-abiding and rational-instrumentalist at the same time—in other words, they choose their compliance strategies rationally within the normative constraint of having to comply with the Court's judgments.'

Friday, 24 August 2018

New ECHR Readings

Please find below a range of recent academic articles and publications about the European Convention and the European Court:

* My Utrecht colleague Janneke Gerards has just published (open access) the article 'Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights' in the Human Rights Law Review :

'Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further benefit from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.'

* Kanstantsin Dzehtsiarou, 'What is Law for the European Court of Human Rights?', Georgetown Journal of International Law, vol. 49.1 (Fall 2017) p. 89 ff.:

'This Article will suggest that judges of the European Court of Human Rights (ECtHR) take into account both legal and non-legal considerations when deciding “hard” cases. This Article focuses on these legal considerations, emphasizing the legal, rather than the political, personality of the ECtHR. Legal considerations can be further divided into internal and external ones. The former originate from within the European Convention on Human Rights (Convention) system, such as the ECtHR case law or the law and practice of the Contracting Parties to the Convention. The latter are provisions borrowed from outside of the realm of the Convention, such as international treaties or laws and practices from nations outside of the Council of Europe. This Article will argue that reliance on internal, as opposed to external, sources can help minimize the challenges that the ECtHR is currently facing in regard to its legitimacy.'

* Lize Glas, 'Translating the Convention’s Fairness Standards to the European Court of Human Rights: An Exploration with a Case Study on Legal Aid and the Right to a Reasoned Judgment', European Journal of Legal Studies, vol. 10, no. 2 (2018):

'The European Court of Human Rights (ECtHR) has clarified when domestic procedures are fair, but it remains unclear when the ECtHR’s own procedures are fair. Yet, clarifying the requirements of procedural fairness applicable to the ECtHR is important, especially in a context where doubts have been expressed about the fairness of some of the Strasbourg procedures. This article proposes that the fairness standards from the ECtHR’s case law, which apply to domestic authorities, can be applied to the Strasbourg Court. These standards must, however, be adapted to or ‘translated’ into the ECtHR’s context, because its context is so different from that of domestic authorities. This article, therefore, develops eleven principles of translation. The usefulness of the principles is tested by employing those principles to translate two fairness standards: the right to legal aid and the right to a reasoned judgment. Subsequently, the usefulness of the translated standards is evaluated by applying those translated standards to two aspects of the ECtHR’s practice: the granting of legal aid and single-judge decisions.'