Less Than 1 Euro Not a Significant Disadvantage

The European Court is continuing to make clear that it will use the new criterion of a lack of a significant disadvantage for applicants (introduced by Protocol 14 ECHR) to declare cases inadmissible. In a July decision in a case called Korolev v. Russia, the applicant complained about his inability to recover 22,50 Russian Roubles (the equivalent of less than 1 Euro!) in court fees.

For the first decision on the new criterion, see my earlier post here. That decision was made by the Third Section of the Court, whereas this - later - Korolev decision came from the First Section. Interestingly, the First Section does not refer at all to the decision of its fellow Section. In addition, its reasoning is more elaborate. In the Korolev decision, the Court elaborates in muc more detail on the lack of a significant disadvantage. Importantly, it emphasizes the importance of context and even the subjective aspects of what a "disadvantage" means to an individual applicant:

The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case (...). The severity of a violation should be assessed, taking account of both the applicant's subjective perceptions and what is objectively at stake in a particular case. (...) The Court is conscious that the impact of a pecuniary loss must not be measured in abstract terms; even modest pecuniary damage may be significant in the light of the person's specific condition and the economic situation of the country or region in which he or she lives. However, with all due respect for varying economic circumstances, the Court considers it to be beyond any doubt that the petty amount at stake in the present case was of minimal significance to the applicant. The Court is mindful at the same time that the pecuniary interest involved is not the only element to determine whether the applicant has suffered a significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interest.

Money can buy more in some situations than others of course! The subjective aspect's influence should not be overestimated, however. The Court found:

The applicant's insistence on the payment of RUB 22.50 by the respondent authority may have been prompted his subjective perception that it was an important question of principle. Although relevant, this element does not suffice for the Court to conclude that he suffered a significant disadvantage. The applicant's subjective feeling about the impact of the alleged violations has to be justifiable on objective grounds. However, the Court does not perceive any such justification in the present case, as the main issue of principle was in all likelihood resolved to the applicant's advantage.

Also in other respects, this decison seems more thoroughly argued than the earlier one. Korolev will be the decision I will use in my teaching to explain the new admissiblity criterion to students.

The fact that the Court highlights such decisions in its press releases seems mainly caused by a desire to signal to both the legal community and the public at large that Strasbourg is not the place to complain about such very minor alleged human rights violations. Put differently, the "significant disadvantage" criterion is used to emphasize Strasbourg's subsidiary role in human rights protection. In the future, the Court will in all probability not reason its inadmissibility decisions for similar applications so elaborately as it did here - otherwise the whole efficiency rationale of the criterion would be lost!

Legitimacy of Human Rights Review at the ECtHR

Professor Andreas Føllesdal of the Norwegian Centre for Human Rights has posted 'The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights' on SSRN. The article, published in the Journal of Social Philosophy (Vol. 40-4, 2009, pp. 595-607) assesses international human rights review from the perspective of legal theory. The European Court of Human Rights is used as a case study. This is the abstract:

The literature concerning judicial review reveals a long list of misgivings of such constraints on domestic democratic decision making. Of concern here are some of the principled objections against the practice of international judicial review of human rights, using the European Court of Human Rights (ECtHR) as a suitable case. This court monitors the European Convention on Human Rights (ECHR), and is among the most powerful treaty-based courts. Still, the ECtHR respects States’ discretion in the form of a "Margin of Appreciation." And it exercises what is sometimes referred to as "weak" review. That is: the ECtHR can find a law or its application to be incompatible with the ECHR, but this does not directly affect the validity of that law in the domestic legal system. Nor does the ECtHR replace such laws with one of its own making, as some forms of "strong" judicial review would.When we ask about the normative legitimacy of such laws, treaties, and bodies, different theories will approach the matter quite differently. The presentation of objections to such international review and responses to them show the implications of different ways to bring normative requirements to bear on institutions. To bring this out, the focus is on two main concerns. Such review seems to violate the commitment to political equality expressed by majority rule, and it is thought to rely on a problematic, predatory conception of human nature. Jeremy Waldron, Richard Bellamy, and others have argued these concerns, often from quite plausible normative premises concerning an individual’s sense of justice and the need to avoid domination. Section 1 presents these criticisms. Section 2 then sketches an alternative way to bring normative requirements to bear on institutional design - Liberal Contractualism - which stands in some contrast especially to that of Waldron. Three main features are laid out, to bring out weaknesses in how Waldron and Bellamy use their normative premises to assess a practice or an institution. Central to this liberal contractualism is a particular institutionalist approach, and a concern for trust-building institutions among individuals who are “contingent compliers” with a sense of justice. This account is somewhat more kindly disposed toward international judicial review of human rights, at least in principle. Section 3 then goes back to the criticisms presented in section 1, and considers the merits of each. Section 4 concludes by identifying some of the weak spots in the case for international human rights review as hitherto made.

New: Irish Human Rights Law Review

Earlier this year, a new journal was launched: the Irish Human Rights Law Review. In a way it is a kind of yearbook since it will be published once a year. This is what the first editorial says about the review:

A necessary part of the effort to “patriate” international human rights obligations, or at least to create a more active “dialogue” between international and municipal
systems, is a vibrant, critical discourse on the domestic legal and political significance of those instruments of human rights protection to which the State is a party. In this annual Review we will endeavour to provide a space in which these issues can be discussed in a rigorous and scholarly manner.

The first issue contains a number of case notes on ECtHR judgments and decisions, some more recent than others, but I am sure subsequent issues will focus on more recent case law as well:

* The Islamic Headscarf Dilemma: Leyla Şahin v Turkey, Dr Tarlach McGonagle
* Jurisdictional Issues: Bosphorus Airways v Ireland, Professor Rick Lawson
* An Ode to Contextualisation: İ.A. v Turkey, Dr Tarlach McGonagle
* Torture and Diplomatic Assurances: Agiza v Sweden, Siobhán Cummiskey
* Damages for Defamation: Independent News and Media and Independent
Newspapers Ireland Limited v Ireland, Alex White
* Investigation of Disappearances: Gongadze v Ukraine, Aoife O’Donoghue

I wish the editors of this new review lots of success in their work on yet another addition to the ever-growing human rights literature! See the press release here.

Book on National Judicial Treatment of ECHR

A new book on the use of the ECHR by national judges, in a comparative perspective, also with EU law, has been published: 'The National Judicial Treatment of the ECHR and EU Laws' (Europa Law Publishing 2010). A Comparative Constitutional Perspective'. It was co-edited by Giuseppe Martinico of the Sant’Anna School of Advanced Studies and Oreste Pollicino of Bocconi Univiversity have published. It does not cover all European countries, but most of the major ones. This is the abstract:

Do national judges start treating the provisions of the European Convention on Human Rights the same way they treat the EC law’s norms? In order to answer this question the editors (Giuseppe Martinico and Oreste Pollicino) involved scholars from the countries that are members both of the EU and the Council of Europe.

The book collects the proceeding of an international conference at the Scuola Superiore Sant’Anna of Pisa (16-17 January 2010).

The table of contents can be found here.

New Articles on ECHR (Hate Speech, Minorities, and More)

I am back after a summer break with fresh energy and a new reading notification for this blog's readers: Uladzislau Belavusau, a Ph.D. researcher at the European University Institute in Florence has published 'Dernier Cri from Strasbourg: An Ever Formidable Challenge of Hate Speech' in European Public Law (Vol. 16/3, 2010, pp. 373-389). This is the abstract of the article:

This article provides the analysis of three recent decisions of the European Court of Human Rights on the problem of hate speech, pertinent in the context of the danger of terrorism, an infamous (anti)-immigration debate, and an extreme nationalist historical mythology (Soulas & Others v. France, Leroy v. France, Balsytė-Lideikienė v. Lithuania). The author endeavours to answer if the ‘dernier judicial design’ of these decisions is actually posing a risk of chilling effect (as some scholars have recently argued) or the earlier Strasbourg proportionality is still à la mode.

The same issue of European Public Law contains no less than five other ECHR-related articles:

* Individuals from Minority and Marginalized Groups before the Strasbourg Court: Legal Norms and State Responses from a Comparative Perspective, by Anagnostou and Millns

The obligation of states to implement the European Court of Human Rights case-law and the potential to exert influence in domestic laws and policies have been instrumental in the establishment and consolidation of the regime of human rights protection established by the European Convention on Human Rights. This article outlines a frame for exploring domestic implementation of ECtHR judgments by specifically focusing on case-law pertaining to marginalized individuals and minorities across different countries. The Court’s jurisprudence has progressively extended the scope of the civil and political rights contained in the Convention to address and at times embrace a multifaceted set of rights claims by non-dominant and marginalized groups, such as prisoners, immigrants, refugees, ethnic, religious, sexual minorities, etc. The purpose of the research introduced by this article is to comparatively explore the conditions under which state authorities implement adverse judgments pertaining to such groups, as well as to probe whether these promote rights-expansive policy change at the national level.

* Human Rights Litigation and Restrictive State Implementation of Strasbourg Court Judgments: The Case of Ethnic Minorities from Southeast Europe, by Anagnostou and Grozev

Legal action by members from ethnic minorities in Strasbourg has often been an alternative route or mobilization strategy aiming to redress broader problems beyond the individual grievances concerned and to pressure national governments to change the way they treat minorities. It is premised on a widespread, but also highly disputed, expectation that judicial rulings can vindicate minorities and exert pressure upon governments to change their relevant laws and practices. Focusing specifically on four countries of Southeast Europe (Greece, Bulgaria, Turkey, and Romania), this article explores the domestic implementation of the European Court of Human Rights (ECtHR) judgments addressing minority claims, as well as its impact (or lack of it) on the ways in which national authorities deal with minorities. Do national authorities implement Strasbourg Court judgments related to ethnic minorities, to what extent and under what conditions are they likely to do so? Does their implementation promote progressive reforms in state laws and policies towards historical minorities? What is the nature of European judicial and human rights influence – if any – at the national level?

* Litigation before the European Court of Human Rights and Domestic Implementation: Does the European Convention Promote the Rights of Immigrants and Asylum Seekers?, by Buchinger and Steinkellner

The purpose of this article is to compare the evolution and current state of European Court of Human Rights (ECtHR) jurisprudence in issues of immigration and asylum. Looking at the variable patterns of litigation and implementation across Europe, the article examines the common challenges to all States in dealing with complex questions of state sovereignty, the regulation of the entry and stay of immigrants and asylum seekers and the human rights of non-nationals. Following a description of the Council of Europe (CoE) framework in dealing with immigration and asylum issues, the article goes on to examine noteworthy case law from the Strasbourg Court, followed by a detailed account of the variable patterns and causes of litigation in different European Union Member States and the different patterns of implementation of ECtHR decisions. The article concludes with a consideration of the impact of European human rights law on the protection of the rights of individuals with an immigration or asylum background.

* Gendered Rights on the European Stage: Do Marginalized Groups Find a ‘Voice’ in the European Court of Human Rights?, by Brayson and Millns

This article examines the pursuit of gender equality rights before the European Court of Human Rights from a comparative perspective. Drawing on material from case reports from a number of European countries, this article investigates the application of Article 14 of the European Convention on Human Rights (the non-discrimination provision) to instances of gender discrimination. Using a theoretical framework of ‘intersectionality’, this article suggests that many cases that arguably have a gender component to them are not viewed as such by the European Court of Human Rights. Instead, they are treated as generic claims raising other civil or political rights and are thereby stripped of their important gender dimension. Two recent cases of the Court brought against Bulgaria (MC and Bevacqua) are, however, celebrated for a more gender specific analysis of the ‘private’ harms suffered by the victims in these cases.

* Secularism and the European Court of Human Rights, by Gülalp

This article examines the variety of State-religion relations and the place of Islam in Europe through a critical analysis of the case law of the European Court of Human Rights (ECtHR, or the Court). This examination reveals both the patterns of litigation, hence the diversity in national political cultures, and the dominant normative assumptions about religion and secularism in Europe more generally, which are implicit in the Court’s reasoning. Although the Court grants a ‘margin of appreciation’ to individual states, the margin itself seems to vary according to those implicit normative preferences. The essay argues that although neither the Convention nor the Court prescribes a normative model of secularism or State-religion relations, there still seems to be an implicit pattern whereby the Court prefers some models to others. Historically ingrained cultural assumptions about not only the division between Christianity and Islam but also between Western and Eastern Christianity appear to have played a part in the reasoning of the judges of the ECtHR.

Thanks to the author for notifying me of this!

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.