Protocol 14 Enters into Force

Today, a bit over six years after it was opened for ratifications, Protocol 14 finally entered into force. The Protocol reforms the supervisory machinery of the European Convention, rendering judicial decision-making more efficient. In addition, it introduces a new admissibility criterion: cases can be declared inadmissible if the applicant did not suffer a significant disadvantage. Finally, it opens up the possibility of EU accession to the ECHR.

The new, consolidated text of the European Convention on Human Rights and Fundamental Freedoms as amended by the Protocol can be found here. Reason for a small, but belated, celebration! Thorbjørn Jagland, the Council of Europe's Secretary General , and Jean-Paul Costa, President of the Court stated in a joint press release that "the entry into force of Protocol No. 14 represents a crucial step in improving the effectiveness of the Court and the protection of human rights in Europe. The Convention establishes the foundations of a common legal space across Europe. Protocol 14 will permit the Court to concentrate more on cases that raise important human rights issues, so it can play its role most effectively." That is only the first step of course as the follow-up - the Interlaken process - is just in its infancy.

Gäfgen Grand Chamber Judgment: Threatening with Torture and Fair Trial Rights

The Grand Chamber of the European Court of Human Rights just issued its keenly awaited judgment in the case of Gäfgen v. Germany today. The case centres on the fact that the applicant was threatened with torture when being questioned by the police. For the facts of the case and my analysis of the earlier Chamber judgment in 2008, see here. The Grand Chamber disagreed with the Chamber on a key point and decided that Mr Gäfgen, who had kidnapped and killed a young boy, could still be considered a victim, even though the German authorities had recognised violations of his human rights already at the national level. Specifically, it held that the punishments of the police officers involved had been relatively modest and did not function as sufficient deterrent for future violations. Thus, the Grand Chamber clearly once more wanted to send a strong signal on the absoluteness of the ban on torture (and even on the threat of torture). From this it followed that Article 3 ECHR had been violated. National authorities thus have to deal with such aberrations of their own personnel with utmost seriousness, even if the victim itself may not arouse a single grain of sympathy.

The Grand Chamber followed the ordinary chamber by holding that there had been no violation of Gäfgen's fair trial rights under Article 6 ECHR. Under both Articles (3 and 6) the Grand Chamber was divided (in both cases eleven votes to six). The various separate opinions are worhtwhile reading for some insights on the Article 3 discussions within the Court.

This is an excerpt from the press release:

Decision of the Court

Article 3

Treatment contrary to Article 3

It had been established by the German courts that a police officer, acting on the instructions of the Deputy Chief of Frankfurt Police, had threatened the applicant with being subjected to intolerable pain in order to make him disclose J.’s whereabouts. The Court considered that these immediate threats of deliberate and imminent ill-treatment had to have caused the applicant considerable fear and mental suffering. It observed that, as established by the domestic courts, the deputy police chief had ordered his subordinates on several occasions to use force against the applicant, his order could therefore not be regarded as a spontaneous act, but had been calculated in a deliberate manner.

The Court accepted that the police officers had been motivated by the attempt to save a child’s life. However, the prohibition on ill-treatment applied irrespective of the conduct of the victim or the motivation of the authorities; it allowed no exception, not even where the life of an individual was at risk. The Court considered that in the present case the immediate threats against the applicant for the purpose of extracting information from him were sufficiently serious to be qualified as inhuman treatment falling within the scope of Article 3. Having regard to its case-law and to the views taken by other international human rights monitoring bodies, it found, however, that the method of interrogation to which the applicant had been subjected had not reached the level of cruelty to attain the threshold of torture.

The applicant’s victim status

The Court was satisfied that the domestic courts, both in the criminal proceedings against the applicant and against the police officers, had acknowledged expressly and in an unequivocal manner that the applicant’s interrogation had violated Article 3.

It observed, however, that the police officers, having been found guilty of coercion and incitement to coercion, respectively, had been sentenced only to very modest and suspended fines. The domestic courts had taken into consideration a number of mitigating circumstances, in particular the fact that the officers had aimed to save J.’s life. While the Court accepted that the present case was not comparable to cases concerning arbitrary acts of brutality by State agents, it nevertheless considered that the punishment of the police officers did not have the necessary deterrent effect in order to prevent further Convention violations of this kind. Moreover, the fact that one of the police officers had subsequently been appointed chief of a police agency raised serious doubts as to whether the authorities’ reaction reflected adequately the seriousness involved in a breach of Article 3.

As regards compensation to remedy the Convention violation, the Court noted that the applicant’s request for legal aid to bring liability proceedings, following a remittal, had been pending for more than three years and that no decision had yet been taken on the merits of his compensation claim. The domestic courts’ failure to decide on the merits of the claim raised serious doubts as to the effectiveness of the official liability proceedings.

In the light of these findings, the Court considered that the German authorities did not afford the applicant sufficient redress for his treatment in breach of Article 3.

The Court concluded, by eleven votes to six, that the applicant could still claim to be the victim of a violation of Article 3 and that Germany had violated Article 3.

Article 6

As the Court had established in its case-law, the use of evidence obtained by methods in breach of Article 3 raised serious issues regarding the fairness of criminal proceedings. It therefore had to determine whether the proceedings against the applicant as a whole had been unfair because such evidence had been used.

The Court found that the effective protection of individuals from the use of investigation methods in breach of Article 3 may require, as a rule, the exclusion from use at trial of real evidence obtained as a result of a breach of that Article. It considered that this protection and a criminal trial’s fairness were only at stake however if the evidence obtained in breach of Article 3 had an impact on the defendant’s conviction or sentence.

In the present case, it was the applicant’s new confession at the trial – after having been informed that all his earlier statements could not be used as evidence against him – which formed the basis for his conviction and his sentence. The evidence in dispute had therefore not been necessary to prove him guilty or determine his sentence.

As regards the question whether the breach of Article 3 in the investigation proceedings had a bearing on the applicant’s confession during the trial, the Court observed that he had stressed in his statements at the trial that he was confessing freely out of remorse and in order to take responsibility for his offence, despite the threats uttered against him by the police. The Court therefore had no reason to assume that the applicant would not have confessed if the courts had decided at the outset to exclude the disputed evidence.

In the light of these considerations, the Court found that, in the particular circumstances of the case, the failure of the domestic courts to exclude the impugned evidence, secured following a statement extracted by means of inhuman treatment, had not had a bearing on the applicant’s conviction and sentence. As the applicant’s defence rights had been respected, his trial as a whole had to be considered to have been fair.

The Court concluded, by eleven votes to six, that there had been no violation of Article 6.

Article 41 (just satisfaction)

The applicant did not claim any award for pecuniary or non-pecuniary damage, but stressed that the objective of his application was to obtain a retrial. As there had been no violation of Article 6, the Court considered that there was no basis for the applicant to request a retrial or the reopening of the case before the domestic courts.

Three Property Rights Judgments

Last week, the European Court of Human Rights issued a number of important judgments which all evolve around the protection of property. In Sarica and Dilaver v. Turkey (available only in French), the Court held that the widespread practice in Turkey of de facto expropriation by the state represented a structural problem and was contrary to the Convention. This practice enabled the Turkish authorities to occupy property without any formal declaration of transferring ownership. They could also change the prospective use of the property irreversibly. The practice forced people to start Court proceedings in order to have such occupation of land quashed or in order to receive compensation. Under article 46 ECHR (binding force and execution of judgments) the Court indicated that Turkey should also take general measures in order to make the process of expropriation less unforeseeable and arbitrary and to secure compensation. Turkey should also actively discourage de facto expropriation by measures of deterrence and by holding the people responsible to account. Reforms in this area are thus now called for in Turkey.

The other two cases relate to a post-conflict context. In Saghinadze and others v. Georgia, the Court ruled on the eviction of an internally displaced person (IDP). The applicant, a Georgian who fled the Georgian province of Abkhazia during the armed conflict in the early 1990s, was given the use of a cottage in Georgia's capital Tbilisi by the Ministry of the Interior, by which he was employed. With his family he build up a new life there. Following the 'Rose Revolution' in Georgia in 2003, the applicant led a number of investigations into criminal cases and also submitted information to the authorities on abuse of power within the state apparatus. Apparently, he stepped on someone's toes a bit too hard, since he and his family were evicted from the cottage in 2004 by agents of the special forces. The Court found that both articles 8 (right to respect for the home) and Article 1 of Protocol 1 (protection of posessions) had been violated. The eviction had been unlawful under Georgian law and contrary specifically to the protection given to IDPs. In a particular example of very intense review, the European Court held that the Georgian Supreme Court had contradicted its on case-law in this matter. In para. 16 the Court noted on this that "where such manifestly conflicting rulings stem from the same jurisdiction, and no reasonable explanation is given for the divergence, such rulings smack of arbitrariness." The rule of law thus clearly also applies to the reasoning (or lack thereof) of national judgments themselves. One may note, in passing, that the Court lauds Georgia's inclusion in its laws of protection for IDPs in line with UN standards, but condemns its lack of application in the practice of this case.

Finally, the case of Dokic v. Bosnia and Herzegovina concerns the case of a lecturer at a military school who tried in vain to repossess his flat in Sarajevo which he had left at the start of the Bosnian war. He currently lives in Serbia and has both the Bosnian and Serb nationalities. Serbia intervened as a third party in the case. Interestingly, the Court considered it unnecessary to establish whether Dokic had been forced to flee Sarajevo, but noted that he was neither a refugee nor an IDP. This was irrelevant for the reasoning of the Court however, which in essence did not deal with the case as a war-related property issue (although that was part of the factual context), but rather decided within its general and established case-law on property rights. It held that Dokic was in essence treated differently than others on the basis of his ethnicity (Serb), even if the applicable law seemed neutral. In addition, the reasoning of the state that the housing was needed to accommodate other people in need was not supported by evidence (military flats were allocated to war veterans, but this was done irrespective of their housing situation or income). In addition, the applicant had not received a comparable occupancy right in Serbia as he had held in Bosnia - there was thus no equivalent alternative (as Bosnian law required). Finally, the compensation offered was too low in the view of the Court. Thus it concluded that Article 1 of Protocol 1 (P1-1) had been violated.

The European Court more strictly scrutinised the state's arguments than the former Bosnian Human Rights Commission had done. In deciding on the same case, the Commission in 2006 found no violation of P1-1. See the judgment (in Bosnian) here.

Finally, for those interested in housing rights (like myself) it is notable that the Court held that the case did not disclose an interference with the right to respect for the home (Art. 8 ECHR), since Dokic had shown no intention of returning to his former flat. This is an application of principles established in Demopoulos v. Turkey earlier this year and is an opposite situation (but same application) of older case law which stressed the need for continuing links with the dwelling at issue (e.g. Gillow v. United Kingdom).

See also the informative post(s) on this case here, by experts who have worked on housing restituion in practice in Bosnia.

European Court Awarded Four Freedoms Award 2010

Last Friday, the European Court of Human Rights was awarded the Four Freedoms Award 2010 in Middelburg, the Netherlands. The Awards are presented yearly to individuals and organisations who have worked towards the realisation of president F.D. Roosevelt's four freedoms: the freedom of speech and expression, the freedom of worship, the freedom from want and the freedom from fear (see also my earlier post here). The award was delivered by Dutch prime minister Jan Peter Balkenende (read his speech here) to president Costa of the Court (read his speech here). You can watch the highlights from the ceremony here, on local 'Omroep Zeeland' television. Congratulations to the Court!

Two New Academic Articles on ECHR

The newest overview of academic articles of the Netherlands Institute of Human Rights (SIM) at Utrecht University, where I am based, is available online. Two articles relate directly to the European Convention on Human Rights:

* P. Giosa, 'The condemnation of Turkey by the ECHR for the violation of property rights in Istanbul and the political impact of the decision on Turkey's candidacy for European Union membership', International Journal of Civil Society Law (2010) vol. 8, no. 1, pp. 56-62.

* Caroline C. Carney a.o., 'An analysis of the influence of the European Convention on Human Rights on the repossession of public housing in Ireland', Trinity College Law Review (2010) vol. 13, no. 1, pp. 55-70.

Blog Anniversary: 2 years!

Today marks the second anniversary of this blog, which started on 26 may 2008 with this welcome post. Growing steadily over time, with 20,000 visitors in its first year, 70,000 in 2009 and already 50,000 in the first five months of this year, I am happy to say that there is a lot of interest in the Convention, the Court and in academic work written on it. A big thank you to all my readers for the reactions and for the information provided. Please continue to do so; your support and interest keeps this blog going!

Book and Seminar on Pilot Judgments

In two weeks time a new book on the issue of pilot judgments will be published: Philip Leach, Helen Hardman, Svetlana Stephenson & Brad K. Blitz, 'An Analysis of 'Pilot Judgments' of the European Court of Human Rights and Their Impact at National Level' (Intersentia 2010). This is the abstract:

As a response to widespread structural or endemic human rights violations, in 2004 the European Court began to issue pilot judgments, the aim of which was not only to exert further pressure on national authorities to tackle systemic problems, but also to stop the European Court itself being inundated with the same types of cases. Fashioned out of its own case law, and underpinned by the principle of subsidiarity, the Court has broken new ground with its pilot judgment procedure, both in terms of its diagnosis of the causes of systemic human rights violations, and the extent to which it is prepared to direct states to legislate, or take other steps, to resolve them.

This study analyses the principal characteristics of the pilot judgment procedure and its application in key cases to date. With case studies on Poland, Slovenia and Italy, a particular focus of the work is the adequacy of the response of national authorities to pilot judgments. It draws conclusions about the effectiveness of the procedure as a means of tackling systemic violations, and makes recommendations for its further development.

At the occasion of the launch, on 14 June, a special international seminar will be organised at the Court itself, with speakers from the Court, national courts and academia.

New ECHR Articles in Human Rights Law Review

The newest issue of the Human Rights Law Review (volume 10, No. 2) has been pubished. It contains a number of ECHR-related articles. Here are the titles and abstracts:

* Alastair Mowbray, 'A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights'

This study begins by examining the origins of the fair balance principle. There follows an analysis of the application of the principle across a range of rights and freedoms guaranteed by the European Convention on Human Rights. The functions performed by the fair balance principle, together with the factors assessed by the Court when utilising the principle are distilled from the case-law. Conclusions are drawn as to the relationship between the fair balance principle and the margin of appreciation doctrine.

* Philip Leach, Helen Hardman, and Svetlana Stephenson, 'Can the European Court’s Pilot Judgment Procedure Help Resolve Systemic Human Rights Violations? Burdov and the Failure to Implement Domestic Court Decisions in Russia'

Pity poor Anatoliy Burdov! He has had to take the protracted route to Strasbourg—not once, but twice—in trying to uphold his rights. It is more than 20 years since he was called up by the military authorities to help clear up after the Chernobyl disaster. His fight for state benefits—due to him because of his exposure to radioactive emissions—still continues. The European Court of Human Rights (ECtHR) delivered judgment in his first case in 2002, and, in the second case in 2009, Burdov gave his name to the first ‘pilot’ judgment against Russia. He is still, even now, waiting for the Russian Government to comply with the decision. This article analyses not only these cases, and how the Russian authorities responded to them, but also the European Court’s new ‘pilot judgment procedure’, aimed at resolving the most intractable human rights violations occurring on the continent. Fashioned out of the ECtHR’s case law, the pilot judgment procedure has had a slow and uncertain start, since its inception in the case of Broniowski v Poland in 2004. However, with the ECtHR delivering four more ‘pilot judgments’ in 2009, the signs are that the procedure is ‘coming of age’. Through the prism of Burdov’s case, we attempt in this article to discern the effectiveness of pilot judgments in tackling systemic human rights violations.

* Annemarieke Vermeer-Künzli, 'Unfinished Business: Concurrence of Claims Presented before a Human Rights Court or Treaty Body and through Diplomatic Protection'

International law has not, yet, defined the limits of concurrent cases involving resort to a human rights mechanism and diplomatic protection. The European Court of Human Rights has on occasion dealt with questions of simultaneous procedures and the International Law Commission (ILC) has described the relation of diplomatic protection to other mechanisms in international law. Even so, the question has not been answered clearly. The present article offers an analysis of the relevant case law and ILC documents, showing the importance of having regard to the facts of the particular case rather than just considering whether a settlement has been reached.

Judgment on Voting Rights for the Mentally Disabled

Today the European Court of Human rights issued an important judgment in a case on voting rights for the mentally disabled: Alajos Kiss v. Hungary. The applicant in the case suffered from manic depression and had for that reason been placed under partial guardianship. Since the Hungarian Constitution contained an absolute voting ban for people put under guardianship, he could not vote in the 2006 parliamentary elections. The European Court held unanimously that such an absolute ban violated the right to free elections of Article 3 of Protocol 1 ECHR.

The Court did accept the Government's contention that "that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs" (para. 38.), but did not buy the consequence Hungary attached to it, namely an automatic exclusion from the right to vote. The Court thus held that the ban was disproportionate. It is useful to quote the relevant parts of the Court's reasoning in full:

41. The Court accepts that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times and, if so, how a fair balance is to be struck. In particular, it should be for the legislature to decide as to what procedure should be tailored to assessing the fitness to vote of mentally disabled persons. The Court observes that there is no evidence that the Hungarian legislature has ever sought to weigh the competing interests or to assess the proportionality of the restriction as it stands.

42. The Court cannot accept, however, that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing (Hirst v. the United Kingdom (no. 2) [GC], op. cit., § 82). In addition, if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State's margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (cf. also the example of those suffering different treatment on the ground of their gender - Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, race - D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ..., or sexual orientation - E.B. v. France [GC], no. 43546/02, § 94, ECHR 2008 ...). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (cf. Shtukaturov v. Russia, no. 44009/05, § 95, 27 March 2008).

43. The applicant in the present case lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship. He may therefore claim to be a victim of the measure. The Court cannot speculate as to whether the applicant would still have been deprived of the right to vote even if a more limited restriction on the rights of the mentally disabled had been imposed in compliance with the requirements of Article 3 of Protocol No. 1 (see mutatis mutandis Hirst v. the United Kingdom (no. 2), op.cit, §§ 48 to 52).

44. The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny. This approach is reflected in other instruments of international law, referred to above (paragraphs 14-17). The Court therefore concludes that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention. (my emphasis, A.B.)

Undoubtedly this has consequences for other European countries as well. There is a strong parallel between this case and the earlier case of Hirst v. the United Kingdom (No. 2) of 2005 in which the Court found that blanket bans on voting rights for prisoners violated the Convention (not yet implemented by the UK, by the way). The principle of individual judicial assessment is now broadened to people with mental disabilities. This underscores the importance of the right to vote and the extreme caution needed when limiting that right. A kiss before voting - from the Court to the applicant - to paraphrase a famous James Bond movie!

Furthermore, it is notable that the Court refers for the very first time, as far as I am aware, to the recent UN Convention on the Rights of Persons with Disabilities (this is the international law instrument mentioned in para. 14, to which the Court refers).

Article on ECHR and Responsibility of Member States of International Organisations

Tobias Lock of University College London has published 'Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations Under the European Convention on Human Rights' on SSRN, a forthcoming article in the Human Rights Law Review. This is the abstract:

The paper examines and critically assesses the ECtHR’s case law applying and distinguishing the Bosphorus decision. The discussion revolves around two major points: the first is the ECtHR’s distinction between cases where there was a domestic act or omission of some sort so that the Bosphorus case applies and member states can (generally) be held responsible; and cases where no such act can be found so that they are dismissed as inadmissible ratione personae. It is argued that this distinction is not convincing. The second point is the application of the Bosphorus decision in a number of cases. The paper tries to explore whether the exact conditions for the applicability of the presumption and its rebuttal have become any clearer.