The Non-Legal Approach to the ECHR

Allow me to point your attention to the International Courts Data site, made by Erik Voeten of Georgetown University. A portal of information on international and regional courts from a political sciences perspective. The site has a special page devoted to the European Court of Human Rights. It includes data sets on dissenting opinions, biographical characteristics of the Strasbourg judges, and other statistical information on cases. Well worth a visit!

Article on Procedural ECHR Aspects and Legitimacy

Two of my former colleagues, Tom Barkhuysen and Michiel van Emmerik of Leiden University, have just made available online their contribution to the book: Huls, Adams & Bomhoff (eds.), The Legitimacy of Highest Court Rulings (TMC Asser Press, the Hague 2009). Their contribution specifically deals with the procedural aspects of the ECHR judicial machinery: 'Legitimacy of European Court of Human Rights Judgments: Procedural Aspects'. The book also contains a host of other ECHR-related contributions. For the table of contents, click here. Well worth reading!

Judges Who Are Too Talkative

It happens around the world that politicians comment on ongoing court cases. Rightly so, this is very often condemned as being detrimental to good and fair judicial proceedings, especially in the public perception. A fortiori, one would say, judges themselves should not comment. Indeed, that may greatly endanger their impartiality. In a judgment released today by the European Court, a violation of Article 6 para. 1 (right to a fair trial) was found on exactly that point. In Olujić v. Croatia, the applicant was a former judge and even president of the Supreme Court. The core of the case is that he was dismissed from office in 1998 after having been found guilty of 'fraternising' in public with two well-known criminals. The problem was that three judges of the National Judicial Conucil, which they decided about the dismissal, had all publicly commented in the media before making their decision in a negative way about Olujić. One colleague called him lacking in experience and knowledge and as being a "corpus alienum" (foreign body) in the judiciary. Another had been himself been candidate for the presidency of the Supreme Court and revealed in the media that he had voted against Olujić initial appointment for that function. The outcome of the Strasbourg proceedings then should come as no surprise. Rather they are an clear reminder of the importance of judicial impartiality - all the more so in this peculiar context of judges judging other judges! It makes one consider that Lady Justice does not only need a blindfold in front of her eyes but sometimes also in front of her mouth, at least during the trial...

For a comment on press coverage and the relationship to ongoing trials, see this article by professor Martin Kuijer.

Women on Waves

Yesterday, the Court issued its judgment in the case of Women on Waves and others v. Portugal and found a violation of Article 10 ECHR (freedom fo expression).

The applicants were three NGOs: a Dutch one (owning a boat on which they used to give information courses concerning reproductive rights and abortion) and two Portuguese ones. In 2004 Women on Waves planned meetings on its ship in a Portuguese port for interested women, but the Portuguese authorities refused entry to the ship and blocked it by way of a war ship. At the time abortion in Portugal was not allowed and the authorities indicated that they thought the Women on Waves ship would give Portuguese women access to forbidden abortion procedures and medicines.

The European Court held the interference to be disproportionate. It noted that nothing indicated that the NGOs had wanted to administer abortion medicines. The aim rather was to inform people. The Strasbourg judges re-emphasized that not only the content but also the form in which information is conveyed are protected by the European Convention. Thus although meetings on land were held in Portugal eventually, the preference of the NGOs to hold the sessions on the ship as they had always done should have been respected. It also noted that the use of a war vessel to stop the ship in itself may have a chilling effect.

For those familiar with the Court's case law it is interesting to see that the Court referred multiple times to its classic case on abortion information, the 1992 Open Door and Dublin Well Woman judgment, in which a violation of Article 10 ECHR was also found. How much has changed in 17 years: this time the judgment was unanimous, whereas the 1992 case counted a staggering 18 pages of concurring, separate and dissenting opinions!

The judgment itself is available only in French at the moment, but a press release in English may be found here. As the Women on Waves' own press release indicates, following a 2007 referendum, abortion is now legal in Portugal.

Costa's Views on the Court

As announced, the Court formally opened its judicial year last Friday - a very special occasion, since the Court exists fifty years. Thus, it provided the oppportunity for the Court's president, Jean-Paul Costa, to look back in his speech at what the Court has achieved in those five decades. Of even greater interest are his remarks on the future. To keep the ship of the court afloat - and this has become a familiar theme - reform is needed.

With the reform Protocol 14 to the ECHR stranded in the Russian Duma until now (Russia being the last state whose ratification is needed) and the Report of the Wise Persons also partially in the air as a result, creative solutions are necessary. Thusfar (judicial) diplomacy has not seemed to yield results concerning the Russian stance. Thus the Court has come up with the idea - and this is what Costa announced in his speech - that in the first half of 2010 it would be good to have a major conference to "pump new life into this fifty-year-old by offering it a cure of youthfulness". The president indicated that such a conference could only have an impact if senior political figures would participate. Maybe the hope is that a gathering of heads of government or state or foreign ministers would engender a new esprit de corps in order to convince Russia to come along and to induce some countries with large amounts of violations to take both the prevention and the cure seriously on the national level. Let's sincerely hope that it will work!

In the meantime the Court is working in its daily practice to keep things going. Costa indicated that we can expect more prioritising of important and serious cases, more pilot judgments (!), and a push for more friendly settlements. The president also appealed to national lawyers to avoid futile or hopeless applications. I must say that I admire the sense of continuing pragmatism and forward-looking attitude of the president and all those working at the Court. Alhough there are many reasons to be pessimistic, they have continuously adopted a pragmatic stance vis-à-vis the many problems.

For those who want to watch a recording of the whole ceremony on webcast, take a look here.

Yukos Lawsuit

In December, I mentioned a judgment of the Court in the case of Aleksanyan, one of the former executives of the now defunct Russian oil company Yukos. Today the EU Observer reported that the Court declared a claim of the shareholders of that company admissible. Reportedly, they claim more than 32.5 billion euros in damages, making this the ECHR case with the largest possible financial implications in its history. No news on the Court's site as yet, nor in the HUDOC search engine. But the EU Observer's article tells us that Russia's ambassador to the Council of Europe saw this as another sign of the "politicisation" of the Court. A wobbly road ahead, whatever the outcome of the case will be.

Annual Report of the Court

Yesterday, at a press conference in Strasbourg, the Court presented its annual report. For Court watchers, the report presents a familiar continuation of the trends of the last few years. A rising number of Court judgments (1,543: up 3%) and 30,163: up 11%), but an even higher rise in new applications (around 50,000, up 20%!). This has the pernicious effect that no matter how much more productive the Court has become, 2008 has been another year of increasing backlogs.

An insightful table of judgments divided per country shows that most judgments were issued against Turkey (257), Russia (233), Romania (189), Poland (129) and Ukraine (110). Four out of these five (Poland excepted) reflect 57% of the new applications lodged in 2008. They will thus probably still top the charts of shame in the years to come. It seems that the Convention system is at its least effective in its (South-)Eastern parts. At the other end of Europe, economically hard-hit Iceland did not get any judgment.

As to the kind of violations, the usual suspects surface: the highest numbers of violations have been found under articles 5 (right to liberty), 6 (fair trial), 13 (effective remedy), and 1 Prot. 1 (property). These outcomes in themselves give some indication that many human rights violations are part of systemic defaults in the countries involved: trials that take too long, judgments that are not enforced, remedies that are not available. In his press conference yesterday, president Costa explained that one of the main lines of reform for the Court would be the effective execution of the judgments of the Court on the national level to avoid overburdening of the Court by repetitive cases. I predict in that context a rise of the pilot judgment procedure.

This year, some rights were spared the taint of violation (which does not mean that they are fully guaranteed, sadly): the prohibition of slavery), the right to marry, the right to education and the right not to be tried or punished twice (and maybe some other rights in the protocols, which the Court grouped as 'other rights').

More on all of this can be found in the Court's Annual Report over 2008, which also contains a handy overview of the Court's cases of that year. I would particularly like to draw the readers' attention to the last two pages, in which one can find a table of allocated applications per country as a ratio of its population. This picture of the 'relative' problems (as compared to the absolute ones) is telling: In the top 4 one finds on places 4, 3, and 2 respectively: Bosnia and Herzegovina, Moldova, and Georgia. This might not be too surprising to many people, but what is interesting is the number 1 place of the highest number of applications per 10,000 people is: Slovenia! I leave it to the curious to analyse what the reason for this may be.

Today the Court will formally start the judicial year 2009. More on that next week!

Environmental Pollution Judgment

It is widely known that the extraction of precious metals from mines often happens by using dangerous chemical substances. If not properly used, such substances can cause damage to the health of people living in the vicinity of such a mine and to the environment. This is exactly what was at stake in one of yesterday's judgments of the Court: Tatar v. Romania. The Court unanimously found a violation of the right to private and family life (Article 8 ECHR). The case is another important environmental law case of the Court: it further specified the state's duties in the realms of precaution and public information.

The applicants, father and son Tatar, lived in the near vicinity of a gold mine in Baia Mare. At the end of the 1990s the gold mine's operating company Transgold obtained a permit to operate the mine with the use of sodium cyanide. In 2000 an accident occurrred: a dam breached, causing the release of 100,000 m3 of cyanide contaminated water into the environment. Father Tatar brought proceedings complaining of the environmental and health hazards (his son was asthmatic) of this disaster. Eventually, no one was prosecuted for this.

In their initial application in Strasbourg the Tatars called this "mass poisoning" and even "genocide" and complained that the situation posed a threat to their right to life under Article 2 ECHR. The Court, however, chose to deal with the case under Article 8, as it has done with other environmental issues before.

Romania, according to the Court, had not sufficiently evaluated the possibly serious risks of the gold extraction method used in the mine. Nor had it informed the general public sufficiently, since the public had not been given access to the scientific studies available, either before or after the acccident. The Court explicitly referred two times to the precautionary principle under international envrionmental law, as contained in the Declaration of Rio and the jurisprudence of its peer, the European Court of Justice. A strong and new connection to the wider legal context, it seems! The Court also noted that the Romanian authorities did not stop the activities of the mine, even after the accident. In conclusion, Romania had failed to abide by its positive obligations under Article 8 ECHR.

Since the Court did not consider a causal link to be present between the health deterioration of Tatar junior and the pollution, no damages whatsoever were awarded. On this point judges Zupancic and Gyulumyan dissented. Their partial dissent offers an intriguing critique of a rigid adherence to classical causal thinking, as opposed to more modern probabilistic theories. In these cases of exposure to toxic materials, there dissenting judges stated, absolute causality is almost impossible to prove in practice. See also paras. 105-106 of the judgment itself on this point. The use of experts (medical or statistical) could be helpful here and such expertise defies the black-and-white, yes-or-no answer that lawyers would like to hear. Nevertheless, they can be essential to come to a well-argued conclusion (see also my earlier comments on the use of experts here) And they certainly have a point. Well worth a read!

The judgment is in French (although the admissibility decision is available in English too), but a press release in English can be found here.

New Issue EHRLR

As the International Law Reporter notifies, a new edition of the European Human Rights Law Review has recently appeared (2008, no. 6, journal accesible through Westlaw). Specifically of interest for watchers of the European Court of Human Rights is an article by Philip Leach, entitled 'The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights'. For more on the topic, see also my earlier posts here and here.

Speech of Court's President on Social Rights

Last week, the Court's president Jean-Paul Costa spoke at the invitation of the Brussels Bar on social rights and the ECHR. Amongst others, he pointed out that the Court is increasingly showing, in its judgments, its awareness of the importance of the European Social Charter - which one could call the socio-economic twin of the ECHR, although the supervisory system is quite different. As Costa succinctly puts it in his speech, the Court is not an isolated planet in the centre of the European human rights system, since the law of gravity also applies to it. Let's see how strong the gravity will be in the coming years! The speech, in French, can be found here.