Blog's Summer Break

This blog is taking a one month summer break. I will be back at the beginning of August and wish all the readers of this blog a very good summer!

Summer Readings on ECHR

As one of the final round-ups for the summer, please find below the latest ECHR-related articles from SIM’’s current contents selection of human rights articles. Enjoy reading!

* T. Esteban Fernández, ‘Environmental cases in the ECHR: a focus in noise pollution’, Yearbook on Humanitarian Action and Human Rights (2009), pp. 133-148.

* V. Bettinson, ‘Deportation of migrant following criminal conviction: European Convention on Human Rights, article 8’, Journal of Criminal Law, vol. 74, no. 2 (2010), pp. 113-117.

* J. Dute, 'European Court of Human Rights’, European Journal of Health Law, vol. 17, no. 3 (2010), pp. 299-313.

Then, the Yearbook of European Law, vol, 28 (2009) includes two contributions on the ECHR:

* M. Amos, ‘The principle of comity and the relationship between British courts and the European Court of Human Rights’,
* A. Ciampi, ‘The potentially competing jurisdiction of the European Court of Human Rights and the European Court of Justice’.

Finally, the Connecticut Journal of International Law, vol. 24, no. 2 (2008/2009) also features two articles on the ECHR:

* M. Sochacki, ‘Takings law: the similarities and differences between the European Court of Human Rights and the United States Supreme Court’, pp. 435-469,
* K. Sadeghi, ‘The European Court of Human Rights: the problematic nature of the Court's reliance on secondary sources for fact-finding’, pp. 127-152.

Special Issue Greek Law Journal on ECHR

A special issue of the Greek Law Journal "Nomiko Vima" has just been published online with a range of articles celebrating last year's fifth decade of existence of the European Court of Human Rights. With over twenty contributions, mostly in English, some in French, from both Greek and European scholars and practitioners, this is a rich volume. It includes articles by a number of ECtHR judges, including Costa, Rozakis, Tulkens, and Spielmann. This is the full list of contributions:

1. D. Paxinos: Fifty years since the establishment of the ECtHR
2. The Editorial Board of Nomiko Vima: “Nomiko Vima” and its participation in the
celebration of 50 years of Strasbourg
3. J. P. Costa: La jurisprudence de la Cour Européenne des Droits de l' Homme et son
influence en France
4. C. L. Rozakis: The Particular Role of the Strasbourg Case-Law in the Development of Human Rights in Europe
5. A. Rantos: The Effect of the jurisprudence of the European Court of Human Rights on the jurisprudence of Greek Courts regarding the right to judicial protection
6. F. Tulkens: Migrants and their right to a family and private life under Article 8 of the European Convention on Human Rights
7. D. Spielmann: L’ extériorisation du vote judiciaire à la Cour Européenne des Droits de l'Homme
8. G. Nikolaou: Pronouncing on Human Rights
9. L. Kotsalis: DNA Bank, Safety and Human Rights
10. S. N. Ktistaki: The Prohibition of Discrimination in the granting of Social Benefits: Some thoughts arising from the recent jurisprudence of the European Court of Human Rights
11. A. Buyse: The Pilot Judgment Procedure at the European Court of Human Rights:
Possibilities and Challenges
12. L. Karelou: The influence of the jurisprudence of the European Court of Human Rights case law in Greece
13. M. Tsirli: Anachronistic Interpretations by Greek Courts and the European Court of Human Rights’ Corrective Role
14. P. G. Voyatzis: La privation de la propriété foncière, la Cour de Strasbourg et la réalité grecque: Variations de violations sur un même thème
15. Ch. D. Argyropoulos: European Convention on Human Rights: History and Adaptation.
The role of European Court of Human Rights
16. N. Frangakis: Systemic human rights violations in the jurisprudence of the European Court of Human Rights
17. V. Chirdaris: Criticizing Strasbourg, Lord Hoffmann, the Limits of Interpretation, the “Margin of Appreciation”, and the Problems Faced by the European Court of Human Rights
18. M. Tzifras: The European Court as a founding instrument for the implementation of
human rights
19. E. Salamoura: The right to be tried within a reasonable time and the restoration of the party’s “presumptive” prejudice
20. V. Chirdaris: The Greek part of the Strasbourg Court
21. P. G. Voyatzis: Dix arrêts importants dans la jurisprudence de la Cour Européenne des Droits de l’ Homme
22. S. D. Gryllis: La liberté de l’Europe

Many thanks to my friend Vassilis Chirdaris who did the editing of this special issue!

First Decision on Lack of a Significant Disadvantage

On the very day of the entry into force of Protocol 14, 1 June 2010, the Court immediately seized the opportunity to start using a new key admissibility criterion introduced by that Protocol, as a press release of the Court highlights this week. In the case of Adrian Mihai Ionescu v. Romania, the Court used the criterion that the applicant had not suffered a "significant disadvantage". The applicant's claim concerned a claim of 90 euros against a bus company with which he had travelled between Bucharest and Madrid, for not providing the promised services. In national court proceedings, his case was assessed his case and his complaints were rejected. The national Court did not rule on his request that the defendant company produce certain items of evidence. Higher courts dismissed his appeals.

The Court used the case to flesh out the three main elemenets of the admissibility criterion found in Article 35, parageraph 3: the Court can declare applications inadmissible if 1) "the applicant has not suffered a significant disadvantage", (2) unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits" and (3) "provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal."

As to the first and most crucial element the Court considered both the amount of the alleged loss itself (90 euros) and its relation to the applicants own (financial) circumstances. Neither of these indicated that the applicant was at a significant disadvantage. Thus the test under this first aspect is a double one: first a relatively external assessment of extent of the disadvantage in itself (which in case of financial loss is admittedly more easy to qualify) and second the relation of that loss to the particular situation of the allged victim. For a very poor person, a loss of 90 euros might of course be significant.

Secondly, the Court looked at whether the two "exceptions to the exception" led to a different conclusion. As to the respect for human rights, the Court concluded that the relevant legal provisions in Romania had been repealed and the case was in that sense of historical interest only. As to the question of whether the case had been duly considered by a domestic court, the Court answered this positively. Thus, it rejected the complaint.

In making its arguments under the three tests, the Court not only used the explanatory report to Protocol 14, but also its own earlier case law. In the case of the 'significant disadvantage' this noticeably included a range of dissenting opinions in earlier cases!

It may be noted that the Court assessed the case in detail and declared part of the complaint ill-founded - the admissibility of evidence issue was declared manifestly ill-founded, whereas the complaint about the proceedings in the higher courts were deemed not to be manifestly ill-founded or an abuse of the right to petition, but rather inadmissible under the new admissibility criterion. This seems to send out the signal that the Court will not too easily apply this criterion to do away with an entire application, but will use it with a caution that respects the various aspects of a complaint. This may assuage the concerns and fears of many, but on the other hand may diminish the efficiency gains of the new criterion. Let's hope the press department of the Court will keep highlighting new developments in these normally difficult to trace non-admissibility decisions.

The case itself is available only in French thus far, but a press release in English can be found here. For a short fact sheet on the reforms of Protocol 14, click here.

Article on ECHR and Abortion

Shannon Calt has just posted a comment on the upcoming ECHR decision in A, B, and C v. Ireland, a case on abortion. The article, entitled 'A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?' was published in the Lewis & Clark Law Review Vol. 14, No. 3 (2010) p. 1189. This is the abstract:

In Ireland, abortion is illegal. In 2005, three Irish women who had previously traveled to England for abortions brought suit in the European Court of Human Rights asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights. The case was heard before the Grand Chamber of the Court on 12/09/2009 and a decision is forthcoming some time in 2010, perhaps 2011.

The European Court of Human Rights has never determined whether the Convention protects a right to life of the unborn or conversely any right to an abortion.The case at hand squarely presents an opportunity for the Court to take a position.

This comment focuses on Irish and European Court of Human Rights abortion law and the impending decision in A., B. & C. v. Ireland. I conclude that - based upon the Court's own jurisprudence - the European Court of Human Rights is very likely to declare that Ireland's nearly absolute abortion ban and the resultant effects of Irish law did and continue to violate rights the Court has already deemed protected by the European Convention on Human Rights. The Court will likely embrace one of two possible holdings. First, the Court could find that Ireland's abortion ban causes undesirable secondary effects such as inadequate post-abortion care, that these effects implicate rights under the Convention, and that Ireland has an unfulfilled positive obligation to mitigate these effects. Alternatively, I suggest that the Court may hold that Ireland's abortion ban itself violates the personal and family rights of applicants A., B. and C. and women like them. Commentators have referred to this case as “Europe's Roe v. Wade,” and I believe this to be an accurate if oversimplified statement.

For a statement of the facts in the case, click here and for the webcast of the hearing, which took place in 2009, click here.

ECtHR Judgment: States not Obliged to Allow Homosexual Marriages

In a key judgment issued today, the European Court of Human Rights ruled on a complaint of a homosexual couple in Austria who were denied the right to marry. Although very recently (January 2010) Austria created the possibility to enter into a Registered Partnership for same-sex couples, marriage still is not possible. The applicants in this case, Schalk and Kopf, complained both under Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life). The Court found no violation of their human rights, although it was very divided on the issue of discrimination (four votes against three in holding that Austria did not discriminate).

On the right to marry of Article 12 ECHR, the Court observed this was the first case in which it exmained whether people of the same sex had the right to marry. In earlier cases, the Court had looked at the position of transsexuals, in which it had concluded that (para. 53) "Article 12 enshrined the traditional concept of marriage as being between a man and a woman. The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950." As to the litteral text of Article 12, the Court held that, looked at in isolation, the text "be interpreted so as not to exclude the marriage between two men or two women" (para. 55). But it then continued to add that "However, in contrast, all other substantive Articles of the Convention grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment. The choice of wording in Article 12 must thus be regarded as deliberate. Moreover, regard must be had to the historical context in which the Convention was adopted. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex."

The applicants asked the Court to interpret the text of Article 12 ECHR in the light of present-day conditions, an interpretation method which the Court has often used in the past to give a new or extended meaning to Convention provisions. This depends to a great extent on an evolving or developing consensus within Europe on a certain matter. In this case, however, the Court noted that there is no European consensus on same-sex marriage. To be precise, it stated that currently only six out of a total of 47 Convention states allow such marriages.

Interestingly, the Court also looked at the Charter of Fundamental Rights of the European Union (27 members) which includes in its Article 9 a right to marry without a reference to men or women, but with a reference to national law in accordance with which that right should be guaranteed. Thus, Article 9 of the Charter, leaves the decision to the states whether or not to recognise same-sex marriages (without oblgiing them to do so). On the basis of this, the European Court of Human Rights concluded on Article 12 that it "would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State." (para. 61). The door is thus left open a little bit, which basically affirms that those countries who do recognise and allow for same-sex marriages do so within the limits of human rights. This did not help the applicants of course. The Court went on to re-affirm that marriage has deep roots in societies and differs from one place to another. Considering this, it found it should not "rush to substitute its own judgment in the place of that of national authorities." To summarise, Article ECHR 12 does not oblige states to allow same-sex couples to marry.

The applicants may have foreseen this outcome and therefore also argued a violation under Articles 8 and 14 taken together. But that backdoor was also closed by the Court, since it held that the Convention's articles have to be interpreted in harmony with each other. The Court thus did not want to grant under these articles what it did not grant under Article 12. However, and here lies the importance of the present judgment, the Court did make a significant step by recognising that stable relationships of cohabiting same-sex couples fall within the notion of family life. This may seem self-evident to many, but for the Court it is a first. I cite the relevant paragraphs in full here:

93. The Court notes that since 2001, when the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples (see above, paragraphs 27-30). Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family” (see paragraph 26 above).
94. In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

The Court then went on to look at the case from a non-discrimination angle in which it reiterated that differences made by the state based on sexual orientation required a serious justification. It also held, innovatively in its jurisprudence, that "same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship." (para. 99).

Nevertheless, it went on to hold that since Austria had introduced a same-sex partnership it would not look at whether a total lack of legal ecognition of same-sex couples would violate the Convention, but only whether Austria had been obliged to offer any alternative way of legal recognition previous to the new partnership law. The Court held that Austria was not obliged to do so, with an explicit reference to the fact that there is "an emerging consensus towards legal recognition of same-sex couples" (para. 105) and that this was a rapidly developing tendency in the past ten years, but that currently no consensus existed yet (which it described as: there is no majority of states doing this yet). Consequently, states should enjoy a wide margin of appreciation. This margin also extended to the precise way in which alternatives (to marriage) of legal recognation fell within that margin. Thus the Court concluded that also on this count the Convention was not violated.
It must be noted, that on the issue of Articles 14 and 8, the Court came to its conclusion with a very small margin (four votes to three). The means that it might be wise for the applicants to ask the Court to have its Grand Chamber take a new look at the case on this very principled point. Indeed, as the three dissenters point out, there is a legal tension between saying that particular serious justifications are needed for such difference of treatment and then paradoxically not assessing whether such reasons where present, but rather going into the margin of appreciation question. Arguably, it is one or the other: the first approach suggests a rather small margin, the second implies that the justifications advanced by the state can be manyfold.

Thus this judgment seems to be a kind of Echternach procession: two steps forward, one step back (or even one step forward and two steps back, depending on ones perspective). It makes some important advances by recognising the at least factual and symbolic equality of same-sex and other couples, but it does not attach any far-reaching and clear legal consequences to that. Either a Grand Chamber judgment or a judgment in a different case which focuses on a situation in which any form of legal recognition in the country concerned was absent, should offer more clarity. The judgment seems to take a slightly too prudent approach for reasons of judcial politics (this outcome is the most acceptable to all states probably), but leaves us with a reasoning that is not entirely convincing nor an outcome which is very promising for same-sex couples.

It may be noticed that the government of the United Kingdom intervened on the side of Austria and that four NGOs (ICJ, FIDH, AIRE Centre and the European Region of the International Gay and Lesbian Association) intervened on the side of applicants.

New ECHR Academic Articles

Three new ECHR-related articles have recently been published. The first is authored by Nadezhda Purtova and has just been published in our own Netherlands Quarterly of Human Rights (Vol. 28, No. 2, 2010, pp. 179-198). It is entitled 'Private Law Solutions in European Data Protection: Relationship to Privacy, and Waiver of Data Protection Rights '. This is the abstract of the article:

This paper seeks to define how the legal categories of privacy and data protection correlate in the European legal system, and what the effects such a correlation has on the mode of data protection. Since the norms of the EC data protection law did not provide a conclusive answer, this paper turned to the ECHR for guidance. As a roadmap of analysis this paper picked the dichotomy between privacy and data protection based on the negative rights and positive obligations explained by De Hert and Gutwirth. The analysis of Art. 8 ECHR case-law led to the conclusion that the European Court of Human Rights does not limit the application of Art. 8 ECHR to private sphere only, and the provision on privacy protection has been applied as giving individuals positive rights (for instance, to refute false information about oneself) and imposing on the states affirmative obligations to create and ensure functioning of an effective system of data protection. The conclusion has been reached that European legal order treats data protection as a privacy interest.

Besides, it has been shown that legal recognition of such a close relationship is much more than just a matter of conviction on the philosophical meaning of privacy. Data protection benefits significantly from enjoying protection of a fundamental right status. Removal of data protection from the scope of privacy rights is not necessary and not desirable. First, development of the ECHR case-law expands privacy protection beyond negative right against state intervention to include affirmative obligations of a state to create a data protection system. Second, treating data protection as anything less than a fundamental right under Art. 8 ECHR will allow its waiver and thereby open the door for a dramatic change in approach to data protection.

The second is an article in the same issue of the Netherlands Quarterly, written by Andrew Drzemczewski, entitled 'The Parliamentary Assembly's Involvement in the Supervision of the Judgments of the Strasbourg Court'. This is the abstract:

Even though the Committee of Ministers of the Council of Europe has primary responsibility to supervise the execution of the judgments of the European Court of Human Rrights, by virtue of article 46(2) of the European Convention on Human Rights, the Parliamentary Assembly has increasingly contributed to the process of implementation of the Strasbourg Court's judgments. Composed of national parliamentarians, the Assembly can put pressure on states parties to the Convention to help ensure - through appropriate national parliamentary oversight procedures and mechanisms - rapid and complete implementation of Strasbourg Court judgments. This important Parliamentary dimension should be taken into account when the 2010 Interlaken declaration and action plan are implemented.

The third is an article in the European Journal of Crime, Criminal Law and Criminal Justice (2010, p. 225-236) by Tijs Kooijmans, entitled 'The Burden of Proof in Confiscation Cases: A Comparison between the Netherlands and the United Kingdom in the Light of the European Convention of Human Rights'. This is the abstract:

The Dutch Minister of Justice recently brought a legislative proposal before the Lower House in which a new broadening of the possibilities for deprivation of advantages was proposed. A comparison of Dutch law with the law of the United Kingdom is useful for a proper assessment of the value of the Dutch proposal. For that reason, the possibilities offered by the confiscation order in the United Kingdom are outlined in this paper. Next, it will be examined how, according to the case law of the ECtHR, the imposition of that confiscation order relates to the presumption of innocence as contained in Article 6 ECHR. Afterwards, the case law of the ECtHR will be represented by a Dutch case that shows some similarity to the imposition of the confiscation order in the United Kingdom. Lastly, several conclusions will follow.

Enjoy reading!

New German and Maltese Judges Elected

Yesterday the Parliamentary Assembly of the Council of Europe elected two new judges to the Court. With respect to Germany, the new judge will be Angelika Nussberger, currently law professor at the University of Cologne. The new Maltese judge will be Vincent Anthony De Gaetano, currently Chief Justice and President of the Constitutional Court, of the Court of Appeal and of the Court of Criminal Appeal. For the result of the vote relating to the German judge, click here. For the one relating to the Malteese judge click here. For the CVs, click here. The new Maltese judge will take up office within three months allowing the oldest judge on the Court, Giovanni Bonello, to finally retire. The new German judge will start working as of 1 January 2011. Both have been elected for a term of office of nine years.

Rendition Case to be Heard in Strasbourg

The case of the former terrorism suspect Khaled El-Masri is due to be considered in Strasbourg by the European Court of Human Rights, according to the Open Society Institute who is supporting his case. El-Masri was arrested by Macedonia in 2003, held incommunicado for over three weeks, and then handed over to the United States, under a practice known since a few years as extraordinary rendition, a very debated issue obviously. He was allegedly flown to Afghanistan, held and ill-treated there and eventually released in the countryside in Albania(!). After pursuing legal venues in vain within the American judicial system, his lawyers are now turning to the European Court, having lodged an application against Macedonia last year. For the press release of the Open Society Institute, click here. For more facts on the case and the application itself, click here.

See also the reporting on the Guardian Legal Network, of which this blog is also a partner, here.

Thanks to Darian Pavli of the Open Society Blog!

Procedure for Electing Judges at the Court

The secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly has issued a document on the 'Procedure for Electing Judges to the European Court of Human Rights'. It is a handy summary of all the rules and developments on the issue of the last few years. The belated entry into force of Protocol 14 on the 1st of June extended the terms of office of the current judges and provides that newly elected judges will have a term of office of nine years. Still, several judges will retire from the Court after many years of acclaimed service. A timetable in the document indicates the foreseen elections for 2010 and 2011. These will include replacements for the highly valued President of the Court, Costa, in 2011 and of judges Jaeger of Germany and Rozakis of Greece later this year amongst others. A great loss of experience, for which one may hope highly qualified replacements will come. Last but not least, the end of the predicament of Maltese judge Giovanni Bonello (born in 1936) is in sight. He was due to retire in 2004 already but for lack of a replacement he is still going strong and continues to write his extremely well-phrased separate opinions, often imbued with a fine sense of irony - I can strongly recommend them to everyone!