Hurrah!

Today this blog reached 1000 page views! I am very happy that news on the Court's judgments, on recent academic articles and other ECHR-related topics have found such a large audience (from 44 different countries so far) in less than three weeks. All the more reason to try and keep up with this good start. I very much welcome any comments, additions or news you may have. A big thank you to all visitors! Antoine

On Wheels Behind Bars

Yesterday, the Court held, in the case of Scoppola v. Italy, that Italy had violated Article 3 ECHR. The applicant, a man in a wheelchair who had no physical personal autonomy, was sentenced to life imprisonment after killing his wife and wounding one of his children. He complained about the detention circumstances in the Regina Coeli prison in Rome. Although a national court had already held in June 2006 that continued detention in that prison would amount to inhuman treatment, the applicant was only tranferred to a better-equipped detention facility in September 2007. The European Court held that the national authorities should either have transferred the applicant without delay in June 2006 to exclude any risk of future inhuman treatment or to suspend the execution of the prison sentence which had been found by a national court to be in violation of Article 3 ECHR.

This is a clear case in which Strasbourg points state authorities to the importance of avoiding inhuman or degrading treatment within their jurisdiction. In that sense, the case mirrors extradition and expulsion cases (most famously Soering v. the United Kingdom, 1989) in which the Court first found that it is a state's duty to avoid any future real risk of treatment contrary to Article 3. In Scoppola, the Court speaks of "tout risque" (any/all risk, para. 50), but that may be explained by the fact that a national court had already found that prolonged detention in the Regina Coeli prison amounted to inhuman treatment. Interestingly, the Court held that it could not assess whether the new prison, although undoubtedly better than the old one, was of sufficient quality, since the Court lacked sufficient information on that point. Thus, maybe to be continued...

Scoppola is the latest case in a very long line of Strasbourg case law on detention conditions of detainees, one of the major fields of application of Article 3. Maybe surprisingly, even the issue of wheelchairs in prisons has already been addressed several times. In Price v. the United Kingdom (2001), the applicant was de facto forced to sleep in her wheelchair, because she was physically unable to use the bed in her cell. The case of Vincent v. France (2006) concerned, among others, the lack of availability of an adequate wheelchair for the applicant. And, in a strange twist, in Mathew v. the Netherlands (2005), the authorities refused to provide the applicant with further use of a wheelchair after he had broken off a metal part of his previous one and had attacked the prison wardens with it!

The judgment itself is only available in French, but an English-language press release can be found here.

Hearings to be Watched

This month the Court will hold a number of notable hearings. Among them is the case of the Polish Autocephalous Orthodox Church v. Poland, concerning uncertainty of ownership of a number of church buildings and the implications for the freedom of religion (hearing 17 June). There will also be a hearing in an interesting Macedonian case, Association of Citizens “Radko” and Paunkovski v. the former Yugoslav Republic of Macedonia. It concerns the dissolution of an NGO for inciting national or religious hatred and intolerance. The NGO was named after a person seen by many as a WW II collaborator of Hitler (hearing 19 June). Finally, the case of TV Vest AS & Rogaland Pensjonistparti v. Norway, focuses on political advertising (by a pensioners party!) on television - a hot topic in many countries (hearing 26 June).

For the full list of hearings, see here. All hearings of this month will take place at 9h00. The webcasts will be available here after 14h30 on the day of each hearing. Enjoy them, almost live...

Two ECHR Articles on SSRN

I would like to highlight two recent articles on the European Convention of Human Rights, both by professor Laurence Helfer of Vanderbilt University, who kindly drew my attention to them. The first, from the European Journal of International Law, focuses on the notion of 'embeddedness' as a guiding principle of the European human rights system. The second, recently appeared in the Harvard International Law Journal, thoroughly surveys and analyses the Court's case law on intellectual property rights. Helfer argues for a limited role of the Court on such issues. Both recommended! Abstracts below, with the full text to be found on the Social Science Research Network:

Helfer, Laurence R., "Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime", European Journal of International Law, Vol. 19, p. 125, 2008.
The European Court of Human Rights (ECtHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECtHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECtHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of ‘embeddedness‘ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECtHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECtHR's deference to national decision-makers is appropriate.

Helfer, Laurence R., "The New Innovation Frontier? Intellectual Property and the European Court of Human Rights", Harvard International Law Journal, Vol. 49, p.1, 2008.
This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region‘s innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article analyzes this trend and uses it to develop three distinct paradigms to identify the proper place of intellectual property issues in the European human rights system. It concludes that the ECHR should find a violation of the right of property in intellectual property disputes only in cases of arbitrary government conduct.

Bumpy Road to Strasbourg

The road to the Court in Strasbourg can be long and bumpy. And some applications are doomed to fail from the start. One needs only to think of the application filed by a computer animation company a few years ago, one of whose complaints was that the very need to file an application amounted to forced labour contrary to Article 4 of the Convention! Unsurprisingly, that part of the application was dismissed by the Court as it did not seem to disclose any appearance of a violation. For those wishing to come to Strasbourg better prepared - or with less humour - a good starting point is the Court's own webpage on the do's and don'ts of applying. Handy notes in all the main languages of the state parties are also available here. For those wishing to come even better prepared there is a number of very useful books. Karen Reed has written a clear volume on the in's and outs of Court proceedings: A Practitioner's Guide to the European Convention on Human Rights (Sweet and Maxwell, 3rd ed.,2008), but its price is rather high (368 USD). Very practical, but a bit older is: Philip Leach, Taking a Case to the European Court of Human Rights (OUP, 2nd ed., 2005). And a very recent one (2008), but in Dutch, written by my former colleagues from Leiden University: T. Barkhuysen, M.L. van Emmerik and E.R. Rieter, Procederen over mensenrechten onder EVRM, IVBPR e.a. VN-verdragen (Ars Aequi, 2nd rev. ed.).

Violation of Roma Right to Education

Today the Court held, unanimously, in the case of Sampanis and others v. Greece, that the treatment of a group of Roma school children by the Greek authorities violated Article 14 ECHR (prohibition of discrimination) taken together with Article 2 of Protocol No. 1. The children had, due to enrollment difficulties, missed a full year of primary school education and, subsequently, were placed in preparatory classes in a separate building in the Greek town of Aspropyrgos. On the first point, the Court considered that the school should have paid particular attention to the vulnerable position of the Roma and should have facilitated the Roma's enrollment. The Court held that under Article 14 authorities should sometimes give different treatment to certain groups to correct inequalities. On the second point, the Court found that there were no clear criteria nor assessments on the basis of which children were placed in separate classes. Although the Court accepted that preparatory classes to help children adjust to the ordinary school system could be justified, the selection of children should be based on non-discriminatory criteria. The Greek argument that the parents had consented to such placement, was countered by the Court in holding that the possiblity to waive one's right not to be discriminated on the basis of race was not acceptable. In addition, the Court found that no effective remedy existed on the national level (violation of Article 13 ECHR). Each applicant was awarded 6000 euros for non-pecuniary damage.

This is the second time that the Court found discriminatory treatment of Roma children in relation to education. The first was the Grand Chamber judgment in D.H. and others v. the Czech Republic of last year. In that, by now already leading case, the Grand Chamber reversed an earlier Chamber judgment (2006) and found a violation of the same ECHR provisions as in the Sampanis case. The D.H judgment is the seminal case on indirect discrimination. It concerned the fact that an inordinately high percentage of Roma children were placed in schools for children with learning disabilities. For a large amount of background materials on that case, see this very useful site of the European Roma Rights Centre.

The Court's press release on the Sampanis case can be found here. The judgment itself is only available in French.

Implementing the Court's Judgments

The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has just declassified a report entitled Implementation of Judgments of the European Court of Human Rights. The report, which is part of the Parliamentary Assembly's ongoing monitoring of implementation of the Court's judgments, was prepared by rapporteur Christos Pourgourides from Cyprus. Formal oversight of implementation is conducted by the Committee of Ministers (Article 46(2) ECHR), but Assembly reports such as these give very handy overviews of progress made, including the outcomes in specific cases. By coincidence, the Committee of Ministers is meeting this week to supervise the execution of the Court's judgments and is planning to discuss 377 judgments. A full-fledged website on the execution of judgments can be found here. Recommended for Court watchers!

(Thanks to the weblog humanrightsdoctorate.blogspot.com of professor William Schabas, which provided the link to the Assembly's report.)

Jurisdiction Revisited Once More

The issue of jurisdiction in the context of human rights has been a focal point of much academic research in the past decade. Marko Milanovic of the Belgrade Centre for Human Rights has just posted a pre-print of an upcoming article in the Human Rights Law Review on SSRN, entitled 'From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties'. The article explores the differences between jurisdiction under general international law and under human rights law. The emphasis is on the case law of the European Court of Human Rights. This is the abstract:

The extraterritorial application of human rights treaties is surely one of the most interesting issues that international law is facing today. Questions as to when a state owes obligations under a human rights treaty towards an individual located outside its territory are being brought more and more frequently, before courts both international and domestic. Victims of aerial bombardment, inhabitants of territories under military occupation - including deposed dictators, suspected terrorists detained in Guantanamo by the United States, and the family of a former KGB spy who was assassinated in London through the use of a radioactive toxin, allegedly at the orders or with the collusion of the Russian government - all of these people have claimed protection from human rights law against a state affecting their lives while acting outside its territory. Obviously, all of these matters are extremely politically and legally sensitive, leading to much confusion, ambiguity and compromise in the existing case law. Further complexity is added by the often concurrent questions such as state responsibility for acts of international organizations or the relationship between human rights law and humanitarian law.

This article will not be attempting to establish whether a particular human rights treaty should apply in a specific factual situation or not, or whether this case or that was wrongly decided. Though the latter kind of analysis in particular cannot be avoided - or, indeed, is to be relished - the purpose of this article is more systemic - to unravel the notion of 'jurisdiction' found in the clauses of various human rights treaties, particularly those protecting civil and political rights, which define their scope of applicability, and on the interpretation of which the extraterritorial application of these treaties ultimately hinges. As will be seen, a number of concepts hide themselves behind this single word, 'jurisdiction', and its different meanings contribute to the confusion found both in the jurisprudence and in academic commentary. The article will first provide a brief overview of jurisdiction clauses in the various treaties, and will then proceed to distinguish this notion of 'jurisdiction' from that eponymous notion in general international law, and from the concept of state responsibility.

Echoes from Chechnya

Last week the Court ruled in five cases against Russia concerning disappearances: Ibragimov and others, Betayev and Betayeva, Utsayeva and others, Sangariyeva and others, and Gekhayeva and others. Violations were found on many counts, including the right to life (Article 2 ECHR), the prohibition of inhuman treatment (Article 3), the right to liberty and security (Article 5) and the right to an effective remedy (Article 13). In all judgments, the Court was unanimous.

These judgments can be added to a growing number of disappearances cases - a sad reminder of the pervasiveness of the problem. There are many aspects of note in the most recent ones, but I would like to single out four:

- First, the establishment of the facts. Since Russia appearantly failed to offer plausible explanations for the disappearances or furnish the Court with full documentation, the Court accepted the applicants version of the facts. These cases are, from that perspective, clear examples of states burning their own fingers by not cooperating with the Court during the proceedings.

- Secondly, four of these cases present a novelty in Strasbourg's dealing with the Chechnyan context. They are the first ones to be dealt with under expedited review. Under rule 41 of the Rules of Court, the Court can make exceptions to the ordinary, chronological order of dealing with cases. If anything, this is a sign of the growing awareness of the urgency of disappearance cases.

- Thirdly, as was kindly pointed out to me by my Utrecht University colleague Marthe Lot Vermeulen - an expert on enforced disappearances - some of these cases, e.g. Imbragimov and others, are an important confirmation of the Court's evolving case law on the victim status of family of the disappeared. In the seminal case of Kurt v. Turkey (1998), the mother of a disappeared person was recognised as a victim. In the later case of Orhan v. Turkey (2002), the Court held that this finding did not imply that any family member automatically was a victim under the Convention. In Orhan, the Court elaborated on relevant criteria for deciding on this issue (see especally para. 358). Applying those criteria in the recent Chechen cases, the Court held that not just parents of disappeared, but also siblings were victims of a violation of the prohibition of inhuman treatment (Article 3 ECHR). For those interested in comparative law, it might be interesting to take a look at the practice of the Inter-American Court of Human Rights. Of special relevance for the issue at hand, is the Court's formal (November 2007) interpretation of its earlier judgment in the case of La Cantuta v. Peru. The interpretation contains an elaborate analysis of the notion of "victim", including a highly interesting concurring opinion of judge Cançado Trinidade with references to Goethe and Pascal!

- Finally, one may wonder when the Court will conclude that the problem of disappearances is a structural one in Chechnya, calling for more general measures on the part of the State. In Ibragimov, we now only find this somewhat subdued statement (para. 84): 'The Court notes with great concern that a number of cases have come before it which suggest that the phenomenon of “disappearances” is well known in the Chechen Republic.'

In four of the five cases, the applicants were assisted in bringing their applications by the NGO Russian Justice Initiative. For its press release, see here. More information on earlier Court rulings in Chechen cases can be found on their website. In the fifth case, Betayev and Betayeva, another NGO, Memorial, gave assistance and advice to the applicants. For a very elaborate analysis of the legal and factual context of the dissappearances issue, see the 2005 Human Rights Watch report Worse than a War.

To be continued soon: on 12 June, the Court will issue judgments in two other disappearance cases from Chechnya.

What's in a name?

A local Turkish court ordered the closure of a Istanbul-based LGBT association (one of the only ones in the country) last Thursday . The name of the Lambda Istanbul Lesbian Gay Bisexual and Transvestites Association was found to be contrary to Turkish morals, since it contained words describing sexual identity. This is part of a press release to be found on Jurist Legal News and Research:

In 2005, Turkish prosecutors rejected a demand by Ankara's deputy governor to shut down gay rights group Kaos Gay and Lesbian Cultural Research and Solidarity Association. The governor's office argued that the title and purpose of the group violated the Turkish Civil Code, which prohibits associations against law and morality, but prosecutors disagreed. A protective clause against anti-gay discrimination was written into the country's penal code in 2004 in an effort to strengthen Turkey's bid to join the European Union, but it was later removed by Justice Minister Cemil Cicek, according to gay rights activists. The EU has said that Turkey must implement human rights reforms before it would be admitted to the EU, but has given no specific instructions that GLBT rights should be included in the changes.

The Lambda Association already announced it will appeal the case, eventually taking it to the European Court of Human Rights if higher Turkish Courts uphold the ban. For BBC coverage of the case, see here. For those interested in more context: last month, Human Rights Watch released a report on gender, sexuality and human rights in Turkey.

The European Court of Human Rights has issued judgments in several cases on GLBT rights. The most famous is undoubtedly the classic case of Dudgeon v. the United Kingdom (1981), in which the Court held that a Northern Irish law criminalising sexual acts between consenting male adults violated the right to privacy of Article 8 ECHR. Much more recently - and more relevant for the Turkish situation - the Court found a violation of Article 11 (freedom of assembly and association) in the case of Bączkowski v. Poland (2007), involving a prohibition of certain demonstrations for gay and lesbian rights in Warsaw.

The President of the Parliamentary Assembly of the Council of Europe, Lluís Maria de Puig, expressed his concern over the ban. For the press release, see here.

We'll keep you informed on whether and when the case reaches the European level. This case was pointed out to me by my good friend Felix Ronkes Agerbeek. Thanks, Felix!