Cinderella and Article 14 ECHR

Rory O'Connell of Queen's University Belfast has posted an article on the evolving role of the non-discrimination principle in the ECHR, which will appear in the forthcoming issue (2009, No. 2) of the journal Legal Studies. It is entitled 'Cinderella Comes to the Ball: Article 14 and the Right to Non-Discrimination in the ECHR' and can be found on SSRN. This is the abstract:

Article 14 ECHR has often been derided as a Cinderella provision, but during the last few years, this has started to change. This article examines how Article 14 has developed, and may live up to its potential as a powerful non-discrimination principle. The case law developments in relation to the "ambit" requirement in Article 14, the development of indirect discrimination case law, and the approval of positive action, all point to a more substantive conception of equality, which offers protection to disadvantaged and vulnerable groups.

Considering that another Convention provision (Article 13 - right to an effective remedy) has been compared to Sleeping Beauty, it seems that the fairy tale metophor is popular among ECHR experts...

New Articles EHRLR

The newest issue of the European Human Rights Law Review (No. 1 of 2009) contains two Articles which directly deal with the ECHR. The first is a contribution by Tamar Feldman, entitled 'Indirect Victims, Direct Injury: Recognising Relatives as Victims under the European Human Rights System'. The second was written by Andreas Dimopoulos and deals with 'Intellectually Disabled Parents before the European Court of Human Rights and English Courts.' The articles in this journal usually become available through Westlaw. Enjoy reading!

Religion and Exemptions to Military Service

Two Jehovah's Witnesses won their respective cases last week in Strasbourg. In the judgments Gütl v. Austria and Löffelmann v. Austria, the operative parts of which are largely the same, the Court unanimously found a violation of Article 14 (prohibition of discrimination) in conjunction with Article 9 ECHR (freedom of religion). Both were active members of the Jehovah's Witnesses in Austria and performed official functions within the movement (preacher and deacon respectively). When they were called up for military service, they indicated that they were conscientious objectors. As a result, they were called up for civil service instead. They complained that the clergy of recognised religious groups were exempt from both military and civil service, whereas they were not. The Court held that the privilege accorded fell within the wider context of the unjustifiable difference in treatment by the authorities of the Jehovah's Witnesses. It had dealt with this in the case of Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (July 2008) which concerned the recognition of the group as a religious society. On the latter case, see my earlier post here.

ECHR Conference in Copenhagen

On 21 and 22 March the University of Copenhagen will be hosting a symposium entitled 'A Unique European Institution. The European Court of Human Rights after 50 Years'. Amongst others, the following themes will be addressed: the political context in which the Court is functioning; the Court's institutional orientation; and the Court and societies in conflict. Both legal scholars and experts from other disciplines will participate. The full programme can be found here.

Grand Chamber Judgment in Prisoner's Case

Today the Grand Chamber issued its judgment in the case of Paladi v. Moldova. In 2007, the Fourth Section of the Court had already decided in the same case. At the request of the Government, the case was referred to the Grand Chamber, but as has become clear today, the outcome is exactly the same: the Court found violations of Article 3 (lack of provision of adequate medical care during the applicant's detention) and of 5 para. 1 ECHR (continued detention in spite of the lack of a judicial decision authorising it). The Grand Chamber followed the findings of the earlier judgment.

The really interesting part of the case is the issue under the right of individual petition (Article 34 ECHR). The Fourth Section and the Grand Chamber both found a violation, since Moldova failed to comply with an interim measure of the Court. They transferred the applicant for four days from a neurology centre (the applicant was in very bad health) to a normal prison hospital in spite of the Court's order not to do so. Whereas the Section had found a violation by six votes to one (dissent by the British judge Nicholas Bratza), the Grand Chamber was much more heavily divided: nine votes to eight. Reading the dissents clarifies that one of the bones of contention was whether a failure to comply with an interim measure automatically means that the effective exercise of right to individual petition is hindered. Another important point was the degree to which national authorities - including the state's agent at the Court - should show due diligence in complying with it. I am sure this is not the end of the discussion, although it provides more details than any judgment on the issue so far.

The press release can be found here.

(Not) Being Informed of HIV/AIDS

For health law afficionados, I can recommend yesterday's Court judgment in the case of Colak and Tsakiridis v. Germany. Ms Colak complained about the fact that she had not been informed by her doctor that her partner was suffering from AIDS (a fact the partner had explicitly asked the doctor not to disclose). Only when the partner died, was it revealed to Ms Colak that he had died of AIDS. Not much later she was diagnosed as HIV positive. She did not receive any damages on the national level, amongst others because an expert held that it was probable that the applicant had already been infected before her partner told their common doctor. The Court assesed the case from the perspective of Article 2 (right to life), Article 8 (right to respect for private life), and Article 6 ECHR (right to a fair trial). No violations of the Convention were found.

EU & ECHR: Uneasy Neighbours?

If the European Union's Lisbon Treaty will ever enter into force, the European Union will be able to accede to the European Convention of Human Rights. That would be a new chapter in the continuously debated relation between the Courts in Strasbourg and Luxembourg. The newest issue of the renowned Common Market Law Review (2009, vol. 46, no. 1) takes stock of this relation in two articles:

* Plate tectonics in Luxembourg: the ménage à trois between EC law, international law and the EuropeanConvention on Human Rights following the UN sanctions cases, by B. Kunoy and A. Dawes (p. 73-104).
* The European Court of Justice and its relations with the European Court of Human Rights: the quest for enhanced reliance, coherence and legitimacy, by G. Harpaz (p. 105-142).

For those interested in the matter from the perspective of the Court's case law, I can recommend a recent decision on non-admissibility of the European Court of Human Rights: Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisseij U.A. v. the Netherlands. In this decision, the Court re-emphasized its ruling in the (in)famous Bosphorus case (2005) stating that the mechanisms functioning within the EU are presumed to offer equivalent protection to the one that state parties should offer under the ECHR. In this particular decision, the Court held that the applicants had not been able to rebut this presumption in relation to the preliminary ruling procedure and the role of the Advocate-General in it.

Education Rights Violation in Turkish University

Today the Court found a violation of the right to education of university students in Turkey in the case of Temel and others v. Turkey. In 2001 and 2002 a group of 18 studnets had petioned their university, Afyon Kocatepe University (see photo), requesting the introduction of optional Kurdish language classes. The university reacted by suspending the students for two terms. The justification given was Regulation 9 (d) of the Disciplinary Regulations of Higher Education Institutions which provides that a person who engages in activities which give rise to polarization on the basis of language, race, religion or denomination is to be suspended from the institution in question for either half or a whole term. Initially, when the students applied to national courts to have their suspension lifted, those courts rejected the applications with the same argumentation. Later, the Supreme Administrative Court quashed those lower judgments. When a lower court re-examined the case, it found that the students had not violated any regulation. By then, the students had missed one or two terms of study.

The European Court found that the disciplinary sanction had not been reasonable or proportionate. Specifically, it considered that the students had not resorted to violence or breaches of the peace and that their request for Kurdish language classes could not be seen as leading to polarization within the university. Thus, it unanimously concluded that Article 2 of Protocol 1 ECHR (right to education) had been violated.

In a separate opinion judge Cabral Barreto indicated that he would have preferred that the case would have been dealt with under article 10 ECHR (freedom of expression) and by the Grand Chamber.

The press release can be found here.

Judgment on Dismissal of Judge

Last week, the Court issued its judgment in the case of Kudeshkina v. Russia. With a very narrow margin of four votes against three it found that the Russian Federation had violated the freedom of expression (Article 10 ECHR) by dismissing a Moscow City Court judge.

Olga Kudeshkina had been the judge in a criminal case directed against a police investigator. During the proceedings, she was removed from the case - according to herself withotu any reason, according to the state because she had been delaying the case. A few months after this, she gave interviews to the media indicating that she had been put under pressure by the President of the City Court and that this was part of a wider pattern of manipulation within the judiciary. She also complained to High Judiciary Qualification Panel about the pressure, but no disciplinary proceedings were brought agianst the Court's President. Eventually, Ms Kudeskina was dismissed after the Court President had accused her of insulting the court system and individual judges.

The European Court held that Kudeskina had raied an issue of high public interest and found her statements to be fair comments, even though they generalised and exaggerated matters somewhat. The dismissal lacked sufficient procedural guarantees, since it had been decided upon by the very City Court about which Kudeshkina had complained. The penalty imposed, finally, could have a "chilling effect" on judges who wished to participate in the public debate on the judiciary. Thus the European Court found a violation of the ECHR. Make sure to read the dissenting opinions, amongst others of the Russian judge, who all emphasize the importance of responsibilities of the judiciary under Article 10.

Ms Kudeshkina herself is (not surprisingly) very pleased with the judgment and hopes to be re-instituted as a judge, although her lawyer expects that Russia will ask the Court to have the Grand Chamber review the case, as the Moscow Times reports. The Court's own press release can be found here.

New Academic Articles on ECHR

Just appeared: two articles dealing with ECHR matters in different academic journals. The first is an article concerning the ongoing discussion on the territorial scope of the Convention and the connected state responsibility: Kjetil Mujezinović Larsen, 'Territorial Non-Application' of the European Convention on Human Rights, in the newest issue of the Nordic Journal of International Law (vol. 78, on. 1, 2009, pp. 73-93). This is the abstract:

This article examines the issue of when a State can be considered not to exercise jurisdiction under Article 1 of the European Convention on Human Rights in parts of its own territory. The starting point is that the notion of jurisdiction in the Convention is primarily territorial, and that a State is presumed to exercise jurisdiction throughout the entire territory. The presumption can be rebutted in exceptional circumstances. The author argues that this can happen only if the State is prevented from exercising authority and control in parts of the territory, and that the lack of authority and control must be caused by the influence of another State. Even if the State is considered to be in this position, the State retains a "reduced jurisdiction", and is under a positive obligation to take measures to protect the human rights of the population. The article examines the issue with particular reference to the Assanidze and Ilaşcu cases from the European Court of Human Rights, and illustrates the issue by reviewing briefly the current situation in four regions in the Caucasus.

Especially relevant to the situation in e.g. the breakaway parts of Georgia.

The second article comes from the latest issue of the Human Rights Law Review (vol. 9, no. 1, 2009) and deals with the phenomenon of separate opinions in the Court: Robin C.A. White & Iris Boussiakou, Separate opinions in the European Court of Human Rights. This is the abstract:

Separate opinions, both concurring and dissenting, have been a feature of judgments of the European Court of Human Rights since its earliest days, but detailed studies of their incidence and impact have until recently been sparse. This article, based on an AHRC-funded research study, offers a survey of the research literature and describes the outcome of its own consideration of such opinions. The use of separate opinions in the European Court of Human Rights is significant, but the incidence of sole dissents by national judges is very low. It would appear that the main determining factor in the writing of a separate opinion is judicial temperament. There is some evidence that the background of judges prior to their election to the Court has some influence on their approach to writing separate opinions. The Court, however, demonstrates high levels of collegiality and the use of separate opinions contributes to the transparency of its decision-making.

I also added two links two to of my own articles online, of 2006 and 2007 respectively (see in the sidebar under 'My research online').

Enjoy reading!