Article on Continuing Violations

My colleague Yves Haeck, together with A. Van Pachtenbeke of Ghent University, have authored an article on continuing violations and the ECHR. It has been published in the most recent issue of the European Human Rights Law Review (see also two posts below on that) and is entitled 'From De Becker to Varnava: the state of continuing situations in the Strasbourg case law'. I am honoured that the authors refer to and build on my earlier article 'A Lifeline in Time: Non-Retroactivity and Continuing Violations under the ECHR' which appeared in the nordic Journal of International Law. A link to that article can be found in the menu on the right and here (accessible for subscribers to IngentaConnect or through university libraries). This is the abstract of the article by Haeck and Van Pachtenbeke:

This article provides a comprehensive study of the case law of the European Court of Human Rights concerning continuing situations. It examines the evolutions in the Court's jurisprudence from the initial case of De Becker v Belgium (1958) until the recent judgment of the Grand Chamber in Varnava v Turkey (2009). The concept and the various types (continuing situations sensu strictu, composite acts and complex acts) of continuing situations are outlined, as well as the legal consequences (competence ratione temporis, admissibility, aggravating effect). Furthermore, the criterion of “sufficient relation” is deduced from the case law.

The article can be accessed, for subscribers, through Westlaw.

Key Judgments of Last Week

Let me highlight here three key judgments and decisions the Court delivered last week. The first is the judgment of Kozak v. Poland on the rights of homosexuals. The Court held that a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy was in the context of the case not acceptable as a way of defending family values and found a violation of Article 14 (discrimination, in this case on the basis of sexual orientation) in conjunction with article 8 ECHR.

The second is the long-awaited judgment in Al-Saadoon and Mufdhi v. the United Kingdom, about two Iraqis taken prisoner by the British troops in Iraq and handed over - against the Court's orders -to the Iraqi authorities (see my earlier post here). The Court found a violation of Article 3, since it had exposed the two to the death penalty which they would face in Iraq. The judgment is an important one in the series of decisions and judgments on the death penalty (see para. 123) of the judgment, for which the groundwork was laid amongst others in Kaboulov v. Bulgaria of November last year. For an analysis on EJIL talk, click here.

Finally, the Grand Chamber issued an admissiblity decision in a group of Cypriot property cases: Demopoulos v. Turkey and seven other cases. The decision is the latest in the series of cases on contested Greek-Cypriot property in the northern, Turkish-controlled part of Cyprus. In the Pilot Judgment Procedure of Xenides-Arestis v. Turkey (2005-2006) a chamber of the Court had indicated that Turkey should enact changes in the existing compensation mechanism, which it subsequently did. In the decision of last week, the Grand Chamber declared a number of applications inadmissible, indicating that the existing remedies in Northern Cyprus should first be exhausted. In this way, the Grand Chamber seemed to take a practical and pragmatic approach. It emphasized that it does not force people to use these remedies - they may also await a broader political solution. But if they do, they cannot yet apply to Strasbourg. This could be seen as a new example of renewed Strasbourgian assertiveness in the light of the large quantity of applications it still faces.

Article on Interim Measures

The most recent issue of the European Human Rights Law Review (No. 1, 2010) features an article on interim measures by Catharina Harby. It is entitled 'The Changing Nature of Interim Measures before the European Court of Human Rights'. This is the abstract:

This article addresses the changing role of interim measures at the European Court of Human Rights. These measures enable the Court to deal with urgent situations where there is an imminent risk of irreparable damage to the applicant which a favourable judgment could not undo. The author analyses the historic use of interim measures, identifying that their use was restricted to potential violations of ECHR arts 2 and 3. The article traces new developments in the use of interim measures through an analysis of the jurisprudence of the Court and the litigation undertaken. In doing this, the author finds that the Court has extended its application of interim measures and proceeds to discuss some of its most important recent decisions and the challenges that have arisen from them. From this analysis it becomes clear the Court's growing use of interim measures, and their increasing recognised legally binding status, is symbolic of the dynamic evolution of Strasbourg case law and the practical use of the Convention as a living instrument.

The article can be accessed through Westlaw.

New Academic ECHR Articles

Three new ECHR-related articles have been published in the past few months, two in English and one in German:

* L. Wildhaber, 'Ein Überdenken des Zustands und der Zukunft des EGMR',
Europäische Grundrechte Zeitschrift vol. 36 (2009), pp. 541-553, on the current predicament and future of the European Court.

* M. Oetheimer, 'Protecting Freedom of Expression: the Challenge of Hate Speech in the European Court of Human Rights Case Law', Cardozo Journal of International and Comparative Law vol. 17, No. 3 (2009) pp. 427-444.

And in the newest issue of the SIM-based Netherlands Quarterly of Human Rights:

* Philip Leach, Costas Paraskeva & Gordana Uzelac, 'Human Rights Fact-Finding. The European Court of Human Rights at a Crossroads', NQHR vol. 28, No. 1 (2010) pp. 41-77. This is the abstract:

This article seeks to examine the effectiveness of the fact-finding activities undertaken by the European Court of Human Rights (and the former Commission). It argues that while some fact-finding missions have revealed certain weaknesses in the past, the very conduct of such missions remains indispensable – in the interests both of litigants and the credibility of the Strasbourg system itself. Therefore, some greater thought needs to be given to practical ways and means to fully tap the Court’s fact-finding potential.

Series of Conferences on ECHR

The French Council of State, together with the European Court of Human Rights, is organising a series of conferences in 2010 and 2011. The first one, on 19 April of this year in Paris, will be devoted to 'the principle of subsidiarity and the European protection of human rights' with both the president of the European Court of Human Rights and the vice-president of the Council of State as speakers. Themes to be addressed in later conferences are:

- “The right of recourse, procedure and
enforcement of the judgments of the European
Human Rights Court”.
-“Interaction between various European law norms
and cross-influence between the Court of Justice of
the European Union and the European Human
Rights Court”.
- “Legal review in relation with the implementation
of constitutional and treaty law norms”.
- “European law applying to detention”.
- “European property law”.

Those who are interested, can register at sre-colloques@conseil-etat.fr and find more information here.

I will be off for a week and back for blogging on Wednesday 3 March.

The Press on Interlaken

The European press is reporting on Interlaken, but I must say there is not a lot on it yet. Most news media seem to limit themselves to an overview of the reforms needed rather than an analysis of the conference's outcomes. Maybe more will come in the following days (if you have links to other news media reporting, please include them in the comments). Click on the links below to see what the various media are reporting on the conference on the future of the ECHR held on Thursday and Friday last week in Switzerland:

- BBC News
- Swiss Info
- Voice of America

Interlaken Declaration and Protocol 14

Double news from Switzerland. First, Protocol 14 will now finally enter into force on 1 June, after yesterday's reposit - just before the start of the Interlaken Conference - by Russia of its instrument of ratification. Read the relieved press statements of the Swiss president of the Committee of Ministers, the Council of Europe's Secretary-General, and the president of the Parliamentary Assembly. Finally, the way is paved for improvements.

And today, the 'High Level Conference on the Future of the European Court of Human Rights' ended with the issuing of the Interlaken Declaration. Apart from signalling the by now well-known problems (too many applications coming in, a huge backlog of cases, and problems with full and quick implemtation of the Court's judgments), the Declaration also contains an action plan. It must be noted that the Conference and Declaration mostly served to rally political support for the much-needed changes. The real work lies in the years ahead, and it is there that the Action plan ,which contains some specific dates, will be essential.

A few points of note:

* the right of individual petition is formally re-affirmed as a "cornerstone", but it seems that in practice the Court will increasingly focus on grave, urgent and systemic violations. In addition even more effective "filtering" of cases is called for. The Conference even calls upon the Committee of Ministers to consider creating filtering mechanisms in the Court which go beyond the single judge procedure. To all effects, that will entail an increaed role for the registry. Without formally abolishing the principle that all applicatinos will be considered, the result of such a development will no doubt be that the judges of the Court will increasingly focus on truly important issues. That in itself is a development to be applauded. Let's see how it works out in practice.

* Pilot Judgments will continue to play an important role, as the Conference sees it as the main way to deal with repetitive applications. But it emphasizes that it should become clearer when and how the Court will use such judgments:. It asks the Court to apply "clear and predictable standards" - many academics, including myself in this recent online article - had called for the same.

* As expected, a lot is also justifiedly asked from the state parties themselves. This includes seconding national judges and others to the European Court, both for support and for the exchange of experience. In addition, states are explicitly asked - or they are asking each other, since this is a declaration by these very states - to take into account the Court's case law concerning other countries in order to consider changes in their own laws and policies - an erga omnes effect in practice of the judgments thus now seems to have been accepted through this declaration.

* It is envisaged that - in order to avoid the long-lasting problems with the entry into force of Protocol 14 - future reforms of the Court will be made easier either by drafting a special statute of the Court which would include many organizational matters or in other ways. Before that can happen, it seems, one would still need at least one new reform protocol...

Let's hope that this fresh breath of alpine air will indeed save the Court from possible asphyxiation - as president Costa metaphorically labelled the Court's current predicament.

Find all the speeches and other information here.

For more on the NGO perspective on Interlaken, including a preparatory document, an appeal and a video, please click here.

Interlaken Today and Tomorrow

Today and tomorrow the long-awaited Interlaken conference on the future of the European human rights protection mechanism will take place in the somewhat unlikely setting of the Casino Kusaal of the small Swiss city - symbolically emphasing that one shouldn't gamble on these issues. For handy overviews of the main documents, agenda of the meeting and more news, please consult the special Interlaken Conference webpage of the Council of Europe and the special site of the organiser, the Swiss Presidency.

Literary Heritage Judgment - A Novel by Apollinaire

A century after its publication in 1907, the novel Les Onzes Milles Verges ("The Eleven Thousand Rods") by the French author Guillaume Apollinaire became the centre of a legal controversy which ended at the highest European level. Yesterday the European Court issued its judgment in the case of Akdaş v. Turkey. The applicant in the case was the publisher of the 1999Turkish translation of the book, an erotic novel containing graphic descriptions of sadomasochism and vampirism amongst others. He was fined under the Criminal Code and the books were seized, since the book in the view of the Turkish courts was obscene and immoral and could arouse and exploit sexual desire among the people.

Akdaş complained in Strasbourg that his freedom of expression had been violated. It may not be surprising that the Court indeed found, in a very succinct judgment, a violation of Article 10 ECHR. What is more surprising is the reasoning which the Court adopted. It reiterated its well-established jurisprudence that morals may vary according to time and place and that in principle national institutions are best placed to assess what is morally acceptable. But then it went on to observe that Apollinaire was a globally renowned author, that the novel had been published many times and in many languages, that it had first been published over a century ago (when it caused a scnadal in France itself) and had even become canonised by being included in the prestigious French literature series 'La Pléiade'. And then comes the crucial passage on the margin of appreciation in this case (para. 30): the Court "considère que la portée de cette marge d'appréciation, en d'autres termes, la reconnaissance accordée aux singularités culturelles, historiques et religieuses des pays membres du Conseil de l'Europe, ne saurait aller jusqu'à empêcher l'accès du public d'une langue donnée, en l'occurrence le turc, à une œuvre figurant dans le patrimoine littéraire européen." Loosely translated, the Court held that the margin of appreciation given to countries because of their cultural, historical and religious particularities ends when it prevents the access of the public (in their own language) to a work which is part of Europe's literary heritage! That sufficed for the Court to conclude that the Convention had been violated. The character of the penalty was only an accessory reason in the Court's argumentation. Thus, apparently, what has become part of the "canon of art" can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe's common heritage!

One may note, by the way, that the novel was banned in France itself until 1970(!) before being applauded officialy as a literary masterpiece. Indeed, not only morals may change over time...

The judgment itself is, fittingly, in French but an English-language press release can be found here.

Article on ECHR and Territorial Jurisdiction

It remains a hotly debated issue: the scope and limits of the territorial jurisdiction of the European Court. The newest issue of the European Journal of International Law (vol. 20, No. 4, 2009) contains a new contribution to this debate. Sarah Miller has written 'Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention'.

This is the abstract:

European participation in controversial aspects of the ‘war on terror’ has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states’ extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual's ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state's physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention's regional identity and its universalist aspirations.