New Issue EJML on ECHR and Migration Law

The newest issue of the European Journal of Migration and Law (Vol. 11-3, 2009) is almost entirely dedicated to the European Convention on Human Rights. These are the contents:

* The European Court of Human Rights and Immigration: Limits and Possibilities, pp. 199-204(6), Authors: Battjes, Hemme; Dembour, Marie-Bénédicte; Hart, Betty de; Farahat, Anuscheh; Spijkerboer, Thomas; Walsum, Sarah van.
* The Soering reshold: Why Only Fundamental Values Prohibit Refoulement in ECHR Case Law, pp. 205-219(15), Author: Battjes, Hemme
* Still Silencing the Racism Suffered by Migrants . . .The Limits of Current Developments under Article 14 ECHR, pp. 221-234(14), Authors: Dembour, Marie-Bénédicte
* Love Thy Neighbour: Family Reunification and the Rights of Insiders, pp. 235-252(18), Author: de Hart, Betty.
* The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants, pp. 253-269(17), Author: Farahat, Anuscheh
* Structural Instability: Strasbourg Case Law on Children's Family Reunion, pp. 271-293(23), Author: Spijkerboer, Thomas.
* Against All Odds: How Single and Divorced Migrant Mothers were Eventually able to Claim their Right to Respect for Family Life, pp. 295-311(17), Author: van Walsum, Sarah.

Articles are accessible for subscribers through IngentaConnect.

Thanks to professor Marie-Bénédicte Dembour of the University of Sussex for notifying me of this!

New Book on Terrorism and ECHR

Intersentia has just published a new book on terrorism. The book includes a strong ECHR component: Anna Oehmichen, 'Terrorism and Anti-Terror Legislation: The Terrorised Legislator? A Comparison of Counter-Terrorism Legislation and Its Implications on Human Rights in the Legal Systems of the United Kingdom, Spain, Germany and France'. This is the abstract:

The present volume deals with terrorism, both the legislative reactions to it and its impact on human rights. It is argued that the preservation of human rights is vital for the prevention of terrorism, encompassing state and non-state terrorism alike. Further, the study shows that legislators tend to disregard fundamental human rights when confronted with terrorism. They are “terrorised” themselves by the incident and risk to overreact.

After an historical account of selected (pseudo-?)terrorist movements throughout time and space, an inventory of anti-terror legislation in four European countries within the last forty years follows. In this context, the author examines the role of the judiciary with a special focus on the European Court of Human Rights in Strasbourg. As a result, we get a complex view on what happened with regard to terrorism and anti-terrorism in different European countries in the past and is happening at present, and what this means for human rights. This allows us to put contemporary anti-terror legislation into perspective. How have different governments dealt with terrorism in the past? How has the law developed after September 11th 2001? Which lessons can be learned, and what can we expect in the future?

A table of contents can be found here. The book is published in the dissertation series of the Netherlands School of Human Rights Research whose new website, in which I was involved, was just launched last week. The site also includes a list of expertise which can be helpful in finding ECHR experts in the Netherlands.

Grand Chamber Judgment on Disappearances

Its been three weeks now, but the Grand Chamber judgment of the Court in Varnava a.o. v. Turkey is important enough to highlight here. The case concerns a number of disappearances which occurred in 1974 during the the armed conflict on Cyprus. The disappeared persons were last seen in areas under the control of the Turkish militrary. Only very recently, in 2007, the bodily remains of one of the disappeared was found and identified.

Largely in line with the findings of the earlier Chamber judgment of 2008, the Grand Chamber found violations of Articles 2,3 and 5 ECHR. But in contrast to the Chamber, it did award the applicants just satisfaction for non-pecuniary damages.

One of the main points of discussion in this case was a question of admissibility: the interpretation of the rule that an application normally needs to be lodged within six months after exhausting domestic remedies. The Grand Chambwer tried to clarify its case law on this point, but did not entirely succeed in that. Rather it came, through intricate argument, to an assessment which is nuanced but not clear-cut. Various judges address this issue in separate opinions, which show how much discussion there must have been on this point.

Another interesting feature is the Court's elaborate referencing to case law from the Inter-American human rights system and the UN Human Rights Committee. In addition, the Court - for one of the first times explicitly - made use of international humanitarian law to strengthen its reasoning under Article 2. In paragraph 185 it held:

As concerns the other seven men, no such documentary evidence of actual detention has been forthcoming. There is nonetheless an arguable case that the other seven men were last seen in an area under the control, or about to come under the control of the Turkish armed forces. Whether they died, in the fighting or of their wounds, or whether they were captured as prisoners, they must still be accounted for. Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict. The Court therefore concurs with the reasoning of the Chamber in holding that in a zone of international conflict Contracting States are under obligation to protect the lives of those not, or no longer, engaged in hostilities. This would also extend to the provision of medical assistance to the wounded; where combatants have died, or succumbed to wounds, the need for accountability would necessitate proper disposal of remains and require the authorities to collect and provide information about the identity and fate of those concerned, or permit bodies such as the ICRC to do so.

One may expect more of this in the years to come, especially with the pending cases concerning the Russian-Georgian conflict of last year. The argument to use international humanitarian law was put forward by Cyprus, as an intervening state in the case. All parties, by the way, were supported by legal advice of the highest caliber: Jochen Frowein for Turkey, Ian Brownlie for the applicants, and Françoise Hampson for Cyprus.

Four concurring opinions and one dissenting opinion are attached to the judgment. The press release in English can be found here.

RSS Feeds by the Court

The Court added a few features to its website last week which makes it even easier to keep track of its work. Apart from existing feeds on news, webcasts of the Court's hearings, bulletins of the Court's library, and case information notes, there are now also feeds on the most recent judgments and decisions. The good thing is that the latter can be suited to the preferences of the users: either judgments or decisions or both, and either all of them or only the ones with importance levels 1 and 2. In addition, one can choose to receive feeds on cases concerning specific countries.

What's more, and this should help the implementation and use of the Court's judgments in national jurisdictions, the Court plans to put translations of a selection of cases on its website. One may presumre this would mostly concern translations into the language of the defendant state - which would be very useful!

Better Working Conditions for ECHR Judges

The Strasbourg docket may be filled to the brim and the work of the judges very demanding, but their status and conditions of service has now at least become more clearly regulated. On 23 September the Committee of Ministers adopted Resolution CM/Res(2009)5 'on the status and conditions of service of judges of the European Court of Human Rights and of the Commissioner for Human Rights'. Amongst others, as far as I am aware, this for the first time introduces a pension scheme for the Court's judges. In addition it regulates other conditions of service, bringing them much more in line with those of personnel working for the Council of Europe.

Harvard Human Rights Journal on ECHR

I had not yet referred to it earlier, but the last issue of 2008 of the Harvard Human Rights Journal contains an article by Jennifer Reiss on Russian non-ratification of Article 14: 'Protocol No. 14 ECHR and Russian Non-Ratification: The Current State of Affairs'. Although the article was written before the adoption of Protocol 14-Bis (which is only referred to at the end of the publication), it is still a useful overview of the reasons for Russia's non-ratification. By the way, the Russian Duma, decided last week to resume the question of the ratification of Protocol No. 14 to the European Convention on Human Rights. Who knows what news may come from Moscow...

Hat Tip: Andrew Dremczewski

Overview of Case Law on Minorities

For the upcoming volume of the European Yearbook of Minority Issues, Leto Cariolou has written 'Recent Case Law of the European Court of Human Rights Concerning the Protection of Minorities.' It does exactly what the title promises and is therefore an ideal tool for a quick update on the Court's judgments on minority issues in the past few years. The article can be found on SSRN.

New Book on Fair Balance

Jonas Christoffersen, director of the Danish Institute of Human Rights, has just published a reworked version of his Ph.D. thesis as a book: Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights with Martinus Nijhoff Publishers. An important addition to the field of ECHR studies and a very extensive analytical work (670 pages) on a legally complicated principle. This is the abstract:

In one of the most important publications on the European Convention and Court of Human Rights in recent years, a wide range of fundamental practical and theoretical problems of crucial importance are addressed in an original and critical way bringing a fresh, coherent and innovative order into well-known battle zones.
The analysis revolves around the Court’s fair balance-test and comprises in-depth analyses of e.g. methods of interpretation, proportionality, the least onerous means-test, the notion of absolute rights, subsidiarity, formal and substantive principles, evidentiary standards, proceduralisation of substantive rights etc. The author coins the term of “primarity” in order to clarify the obligation of the Contracting Parties to implement the Convention in domestic law.

New Academic Articles on ECHR

The newest issue of the European Human Rights Law Review (No. 4 of 2009) contains an article by Lord Anthony Lester entitled 'The European Court of Human Rights after 50 Years'. In addition, the newest two issues of the Revue Trimestrielle des Droits de l'Homme have been published. Number 78 features two articles concerning the ECHR:

* Patrick Wachsmann, Vers un affaiblissement de la protection de la liberté d'expression par la Cour européenne des droits de l'homme;
* Jean-Pierre Marguénaud, L'affaire Burden ou l'humiliation de la fratrie
* Nicolas Bernard, Pas d'expulsion de logement sans contrôle juridictionnel - le droit au logement et la Cour européenne des droits de l'homme.

And number 79 contains two ECHR-related articles:

* Frédéric Sudre, Le mystère des " apparences " dans la jurisprudence de la Cour européenne des droits de l'homme;
* Elisabeth Lambert-Abdelgawad, L’exécution des arrêts de la Cour européenne des droits de l’homme (2008).

The site of the Revue includes abstracts of the articles in English.

Enjoy reading!

Implementation of Judgments Worsening

The implementation of the Court's judgments on the national level is not getting better, to say the least. In fact, 36 of the 47 state parties to the European Convention are now failing to timely implement the Court's judgments. Those are the main conclusions of a report presented last week by Parliamentary Assembly rapporteur Christos Pourgourides. The report is based on a list which shows countries which have either not fully implemented within five years (paying of compensation and/or change or policy or laws) or which "reveal major structural problems". According to the rapporteur this is much worse than previously. He has drawn up a list of problematic implementation cases. One may note that the list contains state parties from all over Europe, both from from original signatories of the Convention and from more recently ratifying countries. All in all, a very worryig trend. Mr Pourgourides rightly calls on his PACE colleagues to raise this matter in their national parliaments.