ECHR auf Deutsch

For readers fluent in German, there is a great resource available on the internet: www.egmr.org. This site, managed by dr. Marten Breuer of the University of Potsdam, is a true Fundgrube of ECHR information in German. Its main appeal lies in its extensive overview of German translations of ECHR judgments, with references to the relevant law journals: a great tool for practitioners. In addition, it contains many links to other sites and a list of ECHR handbooks in the German language. Recommended, or should I say, 'empfohlen'?

Thanks for pointing this out to me, Marten!

Hurray for the Court!

Tomorrow the new European Court of Human Rights will exist exactly ten years, as I reported earlier. In spite of all the current problems, that is a reason to celebrate! As president Costa remarked yesterday:

Much has been achieved over the last ten years, which has seen over 9,000 judgments delivered and human rights jurisprudence evolve into a common language understood and used by legal professionals and others throughout Europe and beyond. It is enormously important that the Court should be able to continue to play to the full its role as a guarantor of democracy and the rule of law in the 47 States through which its jurisdiction extends. This means that the Court will have to adapt to cope with the massive inflow of cases which it has experienced since 1998, that further reforms to the system are required and, above all, that at the beginning of the 21st century and a few weeks before the 60th anniversary of the Universal Declaration of Human Rights all the member Governments of the Council of Europe must reaffirm their commitment to effective international human rights protection, while ensuring that their domestic systems offer citizens the possibility to seek redress for human rights breaches at home.

May many more years follow and may the Court stay afloat in the endless sea of applications!

Non-Refoulement under ECHR

My former colleague of Leiden University, Maarten den Heijer (see his earlier post on this blog here), has just published an article in the European Journal of Migration Law, entitled 'Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights' (vol. 10, 2008, pp. 277-314). He intriguingly analyses to what extent other Articles of the ECHR than 2 and 3 are relevant in the context of non-refoulement. Here is the abstract:

This article challenges the assumption that under the European Convention of Human Rights only Articles 2 and 3 bear relevance in cases of refoulement. By unraveling the explicit and implicit principles applied by the European Court of Human Rights and elaborating upon earlier theoretical attempts to ascertain the impact of the Soering judgment on extradition and expulsion cases, it is argued that there is no clear dichotomy of rights within the European Convention and that the higher threshold for applying Convention standards to cases of expulsion in which maltreatment is suffered in the receiving country is dependent on the notion of a 'fundamental value'. Albeit a somewhat nebulous concept, this notion is likely to encompass not only Articles 2 and 3, but also norms protected by other provisions, or at the least certain intrinsic components of those other provisions.

Highly recommended!

The article is accessible through Ingenta for (academic) subscribers.

New Book on ECHR

Helen Keller and Alec Stone Sweet, of the universities of Zürich and Yale respectively, have just published a new book on the ECHR: A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 2008). It seems to be a useful addition to the growing literature on the reception of the European Convention on the national level. Here is the abstract:

This volume focuses, comparatively and dynamically, on the reception of the ECHR regime within the national legal orders of the Member States of the Council of Europe. The definition of "legal order" used is expansive, including the legislature, the executive, the judiciary, and any public authority established through constitutional and public law that produces or applies legal norms. The central inquiry of the book is how, through what mechanisms, and to what extent, the national legal orders of the Member States are coordinated with, adapted to, or adjusted by the ECHR - emphasizing both the cooperative and conflictive aspects of reception.

The book brings together a series of structured-focused comparisons: each chapter undertaking a comparative case study which collects and analyzes basic data on the reception of the ECHR within national legal orders. These structured-focused comparisons, whose purpose is not so much to test theory, but to develop appropriate theoretical concepts and to generate hypotheses, work on the assumption that comparing two, relatively like cases offer a better opportunity to build more general theoretical frameworks.

Through an examination of a set of general questions about how national decision-makers - governments, legislators, and judges - have reacted to the evolution of European human rights law, the chapters enquire how various actors within national legal orders could take decisions to either hinder or to enhance the status of the ECHR. What interests or values, individual or corporate, are judges maximizing? How has this affected the evolution of the ECHR? How do national constitutions take into account treaty law (or international law generally)? Do separation of powers doctrines (or other explicit provisions of public law) permit or prohibit the judicial review of the legal validity of legislative and executive acts with reference to "higher" norms? To what extent should the federal or unitary nature of a Member State make a difference to reception? That is, should we expect the territorial distribution of powers and competences - judicial, legislative, administrative - to have an effect on the status or effectiveness of the ECHR, and if so, how?

Another Victory for the Freedom of Assembly

Last Thursday the Court found a violation of the right to the freedom of assembly (Article 11 ECHR) in the case of Sergey Kuznetsov v. Russia. The case concerned a small-scale peaceful demonstration in 2003 in front of the Sverdlovsk Regional Court building. The demonstrators distributed leaflets concerning the alleged corruption of the Court's president. The demonstration itself occurred without any problems, but the applicant was subsequently fined for violating the law on demonstrations (he had filed an application 8 days instead of the required 10 days in advance), for obstructing the passageway to the court and for demonstrating with another aim than the one he had asked permission for (slander of the court's president instead of uttering concern about general problems of judicial protection).

What is interesting is that the European Court found a violation, even though the applicant himself had obviously violated the time limits under domestic law. This is another example of the European Court pointing out to domestic authorities that they should not be overly formalistic. One should bear in mind that the specific context of the case led the Court to this conclusion: it was decisive that the applicant's violation of the notification deadline did not prevent the authorities from properly preparing for the demonastration (such as organsing police presence). The demonstration itself was peaceful, did not block the entry to the Court, and did not amount to defamation, incitement to violence or the rejection of democratic principles.

With this judgment the Court continues the line in its case law of 2007 by putting the emphasis on the practical elements of the right to freedom of assembly at the expense - and rightly so, I would say - of purely formalistic notions.

(And just to be clear: the photograph is of another demonstration).

Moratorium on Extraditions to Turkmenistan

Today the Court established a de facto moratorium on extraditions from ECHR state parties to Turkmenistan. In its judgment in the case of Soldatenko v. Ukraine, the Court found that the extradition of the applicant from Ukraine to his own country would violate Article 3 ECHR (prohibition of inhuman or degradign treatment). Nikolay Ivanovich Soldatenko left Turkmenistan in 1999 a few months after an indictment was issued against him for inflicting bodily harm. In 2007 he was arrested by Ukraine on the basis of Turkmenistan's request for extradition. Soldatenko applied for and got an interim measure from the European Court not to be extradited pending the procedure in Strasbourg.

What is really remarkable in today's judgment is that the Court found that in general the detention conditions in Turkmenistan at this moment are so bad and the occurence of torturing of suspects to extract confessions so widespread that extradition of a suspect to that country would violate Article 3 ECHR. One may note that this is irrespective of the (ethnic) status of the applicant or the kind of crime with which he is charged. This amounts to a moratorium, at least for the time being, of extraditions to the central Asian republic! The Court based itself on reports of the United Nations, the United States State Department, the Helsinki Federation for Human Rights and Human Rights Watch of 2006 and 2007. Given this wide basis of information on which the Court built its judgment it is unlikely that this moratorium will be lifted any time soon, unless the situation in Turkmenistan drastically improves.

New Method of Compensation under Article 41

Yesterday, the Court issued its judgment on just satisfaction in the case of Guiso-Gallisay v. Italy. The case concerned a rather straightforward situation of indirect expropriation. The Court seized the opportunity to introduce a new and more equitable method of awarding compensation under Article 41 ECHR. The Court's press release summarizes this new method as follows:

The method used hitherto was to compensate for losses that would not be covered by payment of a sum obtained by adding the market value of the property to the cost of not deriving earnings from the property, by automatically assessing those losses as the gross value of the works carried out by the State plus the value of the land in today’s prices. However, the Court considered that this method of compensation was not justified and could lead to unequal treatment between applicants, depending on the nature of the public works carried out by the public authorities, which was not necessarily linked to the potential of the land in its original state. In order to assess the loss sustained by the applicants, it therefore decided that the date on which they had established with legal certainty that they had lost the right of ownership over the property concerned should be taken into consideration. The total market value of the property fixed on that date by the national courts was then to be adjusted for inflation and increased by the amount of interest due on the date of the judgment’s adoption by the Court. The sum paid to applicants by the authorities of the country concerned was to be deducted from the resulting amount.

We will see in the future whether this new method makes the satisfaction indeed more just.

Social and Economic Rights and the ECHR

Last week Jean-Paul Costa, the President of the Court, gave the opening speech (in French) at a seminar on economic, social and cultural rights organised by the French Human Rights Commission. It is well-known that the European Convention does not contain many socio-economic rights as such (the few exceptions being the protection of property and the right to education). Thus Costa specicifally pointed to that other important European human rights treaty, the European Social Charter. The Court has increasingly started to refer to that text. In addition, the Court's president noted that the Court has on a small scale, but for many years already, read socio-economic rights into the existing provisions of the Conventions. Notably, he implied that this development may continue in unexpected directions in the years to come. He referred to a recent application by a Russian citizen (Budina) who complained that his pension was so low that it violated Article 3 ECHR (prohibition of inhuman and degrading treatment). In his speech, Costa noted that such applications would have been dismissed as manifestly ill-founded in the past, but that such may not necessarily be the case in the future. In this respect, there are indeed some precedents: in its judgment in the case of Moldovan II (2005), the Court held that the living conditions of a group of evicted Roma were so horrible that there had been a violation of Article 3. This comes close to reading at least a minimum right to housing into the Convention in eviction cases.

Considering the difficulties of having socio-economic rights violations judicially reviewed on the international level, this is certainly a development to be followed. Keep the name Budina in mind!

Privacy Rights of Former Torture Suspects

Last week the Court issued its judgments in the two connected cases of Kyriakides v. Cyprus and Taliadorou and Stylianou v. Cyprus. The three applicants in the cases were retired police officers. In 1993 the three men were accused of torturing suspects (Taliadorou and Stylianou) and negligence in failing to stop this (Kyriakides, their superior). They were acquitted during criminal proceedings, since the prosecution failed to convince the judges that there was a prima facie case. However, an independent inquiry commission appointed by the Council of Ministers of Cyprus later found them guilty of the same offences and they were all dismissed by a ministerial decision of 1993. This decision was later quashed by the Supreme Court, since the three had been dismissed without any trial or disciplinary proceedings. What then followed was a judgment by a lower court awarding them compensation for damage to their psychological and moral integrity and reputation (one may indeed understand what the stigma of 'torturer' causes). The Supreme Court then reversed this compensation decision , holding that the moral injury had no causal link with the decision of dismissal.

The applicants mainly complained about a violation of the right to respect for privacy (Article 8 ECHR). They submitted that the last reversal of the Supreme Court had failed to take into account the harm done to their integrity and reputation. The European Court reiterated that such harm indeed fell within the scope of Article 8. It noted, however, the following in para. 56:

The Court also accepts that Article 8 cannot be relied on in order to complain of the damage to an individual’s reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence. It notes however that the applicants had been acquitted of the offences with which they had been charged and that the domestic court found that there had been no case for the defence to answer.

The European Court held that the Cypriot Supreme Court had failed to sufficiently explain its decision. No assessment of proportionality had been conducted. Thus the domestic courts had overstepped their margin of appreciation and Article 8 had been violated.

The applicants Taliadorou and Stylianou also complained about a violation of Article 6(2) ECHR - the presumption of innocence - but the Court held that the Cypriot Supreme Court's decision on compensation did not undermine their innocence and thus no violation was found on that point.

The judgments shows, as could be expected, that the stigma of torture clearly affects one's right to respect for private life. In addition, the Court clearly established that there is a clear difference in this respect between convicted and acquitted persons. Rightly so, of course.

Suicide in Prison Judgment

Today, the Court issued its judgment in the case of Renolde v. France. The facts of the case are sad: in July 2000 Joselito Renolde committed suicide in prison. He had been arrested and put into detention a few months earlier pending his trial for amongst others armed assault on his former partner and their 13-year-old daughter. In July he attempted to commit suicide with a razor blade in his cell. He was examined by psychiatrists and he told them he had a "history of psychiatric problems" and that he had earlier lived in a psychiatric institution. Antipsychotic medication was prescribed from then onwards, but the prison authorities did not supervise whether he actually took the medication. A few days later he assaulted a warden and as a result was placed in a punsihment cell for 45 days. A few weeks later he was found dead, hanging from the bars in his punishment cell. The investigation showed that he had probably not taken his medicines for at least two or three days.

The application was brought by his sister. She complained about violations of Articles 2 (lack of preventive measures to protect her brother's life) and 3 (inhuman treatment and degrading treatment of her brother) ECHR. The Court agreed with her. Elaborating on its case law in Keenan and Rivière, it found violations of the two articles. It pointed at the specific needs of the mentally disturbed when being imprisoned. Especially the lack of supervision for the taking of the medication and the placement in a punishment cell (the most severe punsihemnt) were crucial elements for the Court.

One may also want to read the short concurring opinion of Judge Villiger,who points at the importance of supervision concerning the taking of medication in all cases of vulnerable persons. Thus, the importance of the matter, in his eyes, goes beyond psychiatric patients, but applies equally to e.g. children.

The press release of the case can be found here.