A New Advisory Opinion May Be Coming Up

At its meeting on 8-9 July the Committee of Ministers (in its composition of deputies) of the Council of Europe decided to ask the Court for clarity on the issue of candidates lists for possible new judges submitted to the Parliamentary Assembly. The requests directly follows up on the dispute on the problematic Ukrainian list of candidates. On that matter, see my earlier post here. If the Court issues an Advisory Opinion, it would be the second one in its history. Last year, it issued an Opinion on an issue concerning gender aspects of candidate lists.

These are the questions that were asked by the Committee of Ministers concerning the current issue:

a. Can a list of three candidates, nominated by a High Contracting Party for election as a judge to the European Court of Human Rights in respect of the High Contracting Party and submitted to the Parliamentary Assembly, be withdrawn and replaced with a new list of three candidates by that High Contracting Party? If yes, is there any time limit?

b. Can candidates for the post of judge at the European Court of Human Rights be considered as nominated by a High Contracting Party within the meaning of Article 22 of the European Convention on Human Rights if the list containing their names has been withdrawn by that High Contracting Party?

c. Is the Parliamentary Assembly obliged to consider a list of candidates submitted by a High Contracting Party which replaces a list previously submitted but withdrawn by that High Contracting Party?

2. furthermore, they invited the Court to pronounce on the following two additional questions:

a. If one or more candidates on a list of candidates submitted to the Parliamentary Assembly by a High Contracting Party withdraw(s) before the Parliamentary Assembly has voted on the list, is that High Contracting Party obliged under the European Convention on Human Rights to submit an additional candidate or candidates to complete the list or is it entitled to submit a new list?

b. Are the conditions in paragraphs 1 and 2 of the Appendix to Resolution 1432 (2005) of the Parliamentary Assembly of the Council of Europe in breach of the Assembly’s responsibilities under Article 22 of the European Convention on Human Rights to consider a list, or a name on such a list, on the basis of the criteria listed in Article 21 of the Convention?

This is the link to the official document. The request has been transmitted to the Court's President on 15 July.

Travaux Préparatoires Available Online

For all those interested in the historical roots of the ECHR, but with no direct access to an academic library, I can recommend the site of the Court's own library. The site contains a full page with links to the Travaux Préparatoires of the Convention, in both French and English. A great resource, although the site adds a caveat of its own:

The Travaux Préparatoires documents are internal working documents of the Registry which were produced at a certain time and for a certain purpose. There is no guarantee of their completeness and they should not be cited. The information they contain should be cross-checked against the published work in 8 volumes which is the official version of the Travaux Préparatoires. Citations should be made to this work.

Article on Rape, Torture and ECHR in ICLQ

Clare McGlynn of Durhan Law School has published 'Rape, Torture and the European Convention on Human Rights' in the newest issue of the International and Comparative Law Quarterly (Vol. 58-3). This is the abstract:

This article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Court's achievements in recognizing rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.

Newest Issue of European Human Rights Law Review

Issue No. 3 (2009) of the European Human Rights Law Review has been published. Articles related to the ECHR include the following:

* Eduardo Andrés Bertoni, The Inter-American Court of Human Rights and the European Court of Human Rights: A Dialogue on Freedom of Expression Standards
* Sejal Parmar, The Challenge of "Defamation of Religions" to Freedom of Expression and the International Human Rights System
* Ewa Komorek, Is Media Pluralism a Human Right? The European Court of Human Rights, the Council of Europe and the Issue of Media Pluralism

The journal can be accessed through Westlaw.

New Journal Articles on ECHR

Still catching up on new ECHR-related journal articles. Here are two noteworthy ones:

* A. Ashworth, 'Self-incrimination in European human rights law - a pregnant pragmatism', Cardozo law review, 2008, vol. 30, no. 3.

* J. Barrett, 'Chechnya's last hope? Enforced disappearances and the European Court of Human Rights', Harvard human rights journal, 2009, vol. 22, no. 1.

Enjoy the read!

First Single Judge Decisions at the Court

This month, the Court has started to use the possibilities offered by the reforms of Protocol 14-Bis to the ECHR. The most important innovations are that single judges can now declare manifestly ill-founded cases inadmissible and that committees of three judges can decide on the merits of legally easy cases (issues which have already been dealt with by the Court - this will often be so-called repetitive cases). The single judges are never from the country against which the relevant applications are lodged. The procedure already applies to some larger countries, such as the United Kingdom and Germany, but also others including Denmark, Norway, Switzerland and the Netherlands. More countries have already followed suit.

For more information, see my earlier post on Protocol 14-Bis, the Court's press release on single judge decisions and the addendum to the Rules of Court. You may also want to consult the Explanatory Report.

In the short run, matters seem to get more complicated as the procedure may now vary from country to country (depending on acceptance of Protocol 14-Bis), but at least it may for a small part solve some of the case load problems of the Court. A real solution would of course be that Russia would finally ratify the orginal reform Prtocol 14. And even then, further innovations would probably be necessary to keep the Strasbourg machinery running instead of grinding slowly to a halt.

New article on ECHR, Risks, and Environment

Back from the summer break with a new article on the Convention! Professor Christopher Hilson of the University of Reading has published a contribution entitled 'Risk And The European Convention On Human Rights : Towards A New Approach'. freely accessible on his webpage.

Summer Break

This blog's author is taking a summer break. The blog will be running again on 27 July. Wishing all my readers a very good summer!

New Vice-President

Today, the Court has elected Renate Jaeger from Germany as Vice-President of one of its Sections, with effect from 1 July 2009. This is the main part of the Court's press release:

Judge Jaeger was born on 30 December 1940 in Darmstadt and studied law at the Universities of Cologne, Munich and Lausanne. She was judge at the Social Court in Düsseldorf between 1968 and 1974, judge at the Social Court of Appeal of North Rhine-Westphalia between 1974 and 1987 and, between 1987 and 1994, judge at the Federal Social Court. After holding the post of judge at the Constitutional Court of North Rhine-Westphalia between 1988 and 1994, Mrs Jaeger was judge at the Federal Constitutional Court until 2004, when she was elected to the European Court of Human Rights.

The European Court of Human Rights is composed of a judge elected in respect of each of the 47 States that have ratified the European Convention on Human Rights. The Court is divided into five judicial Sections and each judge is a member of one of the Sections. The plenary Court elects the Presidents of Sections for a three-year term, and each Section also elects a Vice-President for a three-year period. Chambers of seven judges are formed within the Sections; the Court also sits as a Grand Chamber of 17 judges.

Article on European Consensus in Case Law

A new working paper of the University College Dublin has just been posted on SSRN entitled 'European Consensus: A Way of Reasoning', authored by Kanstantsin Dzehtsiarou. This is the abstract:

The margin of appreciation is probably one of the most controversial and widely discussed concepts that has been developed by the European Court of Human Rights. A few books and hundreds of articles were written to justify or challenge the margin of appreciation. European consensus argument has always operated in the shadow of the wider concept of margin of appreciation. However European consensus is called to define the landmark signs capable to turn around the ECtHR reasoning. Moreover, European consensus goes far beyond mere determination of the scope of margin of appreciation. Different types of consensus argument assist in defining the meaning of vague conventional terms, approached as a common denominator for autonomous interpretation, measure proportionality of interference. The present article aims to conceptualise the notion of European consensus and structure the divergent references of this concept in the case-law of the European Court of Human Rights.