London Conference on EU Accession to ECHR

The European Institute of University College London is organising a conference on 20 May 2011 entitled "Who will be the ultimate guardian of human rights in Europe? Implications of the European Union’s Accession to the European Convention on Human Rights". This is the information provided by the organisers:

The aim of this one day conference is to address the ever-topical question of the ultimate guarantor of human rights in the EU: the Union’s own court (the European Court of Justice), the European Court of Human Rights or national constitutional courts?

Given the envisaged accession of the European Union to the European Convention on Human Rights, there is ample reason for re-visiting this question: the accession might completely change the landscape of human rights protection in Europe.

The legal background is as follows: Article 6 (2) of the Treaty on European Union puts the EU under an obligation to accede to the ECHR. With the entry into force of Protocol No. 14 to the ECHR, an accession has now become possible. Negotiations between the EU and the Council of Europe promptly started in July 2010 and are expected to be completed by June 2011.

The conference is to be held as a one day event on Friday, 20 May 2011 in the Faculty of Laws, University College London. Its aim is to bring together judges, officials, politicians, practitioners and academics, who will discuss the outcome of the accession negotiations so far, highlight potential problems (and proposals to resolve them) and consider the potential impact of an accession on the legal orders of the Union and the Member States. It is hoped that the outcome of the conference will lead to new insights about the future of human rights protection in Europe. The conference will be rounded up with a discussion panel co-organised and hosted by the German Embassy.

Article on ECHR Abuse Clause and Freedom of Expression

The newest issue of our Utrecht/SIM publication, the Netherlands Quarterly of Human Rights (vol. 29, no. 1) includes an article by Hannes Cannie and Dirk Voorhoof, both of Ghent University, entitled 'The Abuse Clause and Freedom of Expression in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?'. This is the abstract:

With regard to certain types of hate speech, the European Court of Human Rights and the former Commission have developed a tradition of applying Article 17 ECHR; the so-called abuse clause. This application leads to a categorical exclusion from protection of the right to freedom of expression (Article 10), an approach that contrasts sharply with the Court's general attitude toward accepting and even creating a broad scope of protection under this right. It also contrasts with the Court's usual examination of interferences with the freedom of expression in the light of the case as a whole, all its factual and legally relevant elements being taken into consideration. The aim of this article is to show that the abuse clause's application is undesirable, since it tends, even in its indirect variant, to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework. The application of Article 17 is also unnecessary, as it in no way generates an added value for democracy or for human rights protection. We therefore strongly encourage the European Court to consider all forms of hate speech from the perspective of Article 10, without affording a decisive impact, directly nor indirectly, from Article 17 of the Convention.

Italian Book on Role of the Judge and ECHR

Roberto Conti has just written a new Italian-language book on the European Convention on Human Rights and the role of the judge (La Convenzione europea dei diritti dell'uomo. Il ruolo del giudice), published with Aracne Editrice. This is the abstract in Italian:

In una pubblicazione, edita nel 2002, dedicata alla Convenzione europea per la salvaguardia dei diritti umani il capitolo dedicato al ruolo della giurisprudenza italiana nell’applicazione della CEDU constava di appena sei pagine. Le riflessioni presenti in questo volume intendono, per un verso, dare atto dell’ormai inarrestabile capacità della Convenzione anzidetta di diventare “protagonista” di numerose e rilevanti pronunzie giurisprudenziali domestiche, ma anche – e soprattutto – “fotografare” il ruolo centrale progressivamente assunto dal giudice nazionale nella protezione dei diritti fondamentali. L’approccio triangolare seguito, aperto a individuare i rapporti fra la Costituzione, la CEDU e la Carta dei diritti fondamentali di Nizza-Strasburgo, intende offrire al lettore uno strumento che possa metterlo in condizione di esercitare, a ogni livello, il ruolo di difensore dei diritti fondamentali.

The book focuses on the role of national judges in interpreting and applying European human rights standards.

New Academic Articles on ECHR

A few recent articles concerning the ECHR in law journals: the Columbia human rights law review (vol. 42, 2010/11, no. 1), pp. 233-277 includes:

* A. Izumo, Diplomatic assurances against torture and ill treatment: European Court of Human Rights jurisprudence

The Fordham international law journal (vol. 34, 2010/11, no. 1, pp. 46-77)

* O. Akbulut, Criteria developed by the European Court of Human Rights on the dissolution of political parties

Finally, an article in the German journal Europäische Grundrechte Zeitschrift (vol. 38, 2011, pp. 1-11):

* J. Baumann, Auf dem Weg zu einem doppelten EMRK-Schutzstandard? Die Fortschreibung der Bosphorus-Rechtsprechung des EGMR im Fall Nederlandse Kokkelvisserij.

Pilot Judgment Procedure Included in Rules of Court

The phenomenon of the Pilot Judgment Procedure for a long time lacked a clear legal basis, although it had a stronger political backing by way of calls of the Committee of Ministers. In addition, it was not always clear when and how the European Court of Human Rights would use the procedure. Most recently, the Interlaken summit of last year asked the Court to develop clear and predictable standards for the procedure. A call which had also been made by various NGOs and academics, including myself in this article 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' (amongst many other authors obviously). After a few years of 'piloting' the pilot procedure, the Court has now included a new provision in its Rules of Court. The new Rule 61, which will be effective at the end of March.

The new rule codifies the procedure. It provides that the pilot procedure can be used when facts in application "reveal in the Contracting State concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications." The new rule does provide a stronger legal basis, but it does not take away many of the uncertainties surrounding the pilot judgment procedure. For example, it indicates that a procedure may be started by the Court of its own motion or at the request of one of the parties. It also states that the Court may set time limits for the remedial measures required, and that it may adjourn similar applications.

One could therefore argue, on the downside, that a lot of uncertainy remains. On the upside, it offers the Court the required flexibility to assess what is expedient. Where it does strengthen the existing situation is on the information side of things: not only the applicants in the pilot case, but also applicants in the adjourned cases should be notified of relevant developments affecting their cases. In addition all key players in the Council of Europe (Committee of Ministers, Parliamentary Assembly, Secretary-General, and Human Rights Commissioner) shall be informed whenever a pilot judgment is adopted "as well as of any other judgment in which the Court draws attention to the existence of a structural or systemic problem in a Contracting State." This should strengthen the supervision on implementation and the tackling of underlying problems more structurally. Also, the Court's website will give more information on the initiation, adoption, and execution of pilot judgments. Taken together, although not entirely ideal, the new rule is a step forward.

Bluff Your Way Into The ECHR

The information department of the Court has compiled a small online brochure entitled 'The European Convention on Human Rights in 50 Questions'. Ranging from "Does the Convention evolve?" to 'What is a pilot judgment?', the small online booklet contains a wide range of factual information. However, this is not the kind of guide which will serve to explain the Convention to your little cousin. For to ask questions such as 'What is a third-party intervener?' one is probably already somehwat aware of the particular features of Strasbourg proceedings. More useful probably for law students or journalists who report on Strasbourg.

Working Paper on ECHR and Copyright Law

Robin Herr of the Copenhagen Business School Law Department has posted a working paper on SSRN entitled 'The Right to Receive Information Under Article 10 of the ECHR: An Investigation from a Copyright Perspective'. This is the abstract:

The purpose of this paper is to investigate the right to receive information under Article 10 of the European Convention of Human Rights in order to determine whether or not it is relevant to copyright law. The bulk of the article describes how the right to receive information operates. Focus is placed on the composition of the right, the scope of the test to justify an interference, principles that may affect the Court’s evaluation and any negative or positive obligations that may arise. In conducting this part of the research, over 125 cases were investigated. After detailing the case law, efforts are made to identify state obligations and trends that could potentially affect copyright. The article concludes with a brief statement of the areas of copyright law in which these obligations and trends could be relevant.

New Guide on EU and ECHR Non-Discrimination Law

Today is the International Day for the Elimination of Racial Discrimination. It also marks the launch of a new book entitled 'European Non-Discrimination Law', which integrates the converging yet very complex interlocking system of non-discrimination law of the European Union and of the European Convention on Human Rights. In a joint project the EU's Fundamental Rights Agency and the European Court of Human Rights have endeavored to make the legal framework on the issue more accessible (and indeed it is written in a very reader-friendly way, enlightening the legal rules also for non-experts). This is the abstract of the book, which is being launched in Strasbourg today:

The handbook is the first publication to present and explain the body of non-discrimination law stemming from the European Convention on Human Rights and European Union law as a single, converging legal system.

The substance of non-discrimination law is set out according to the definitions of direct and indirect discrimination as elaborated through the European Convention on Human Rights (including Protocol 12) and the European Union’s Gender Equality Directives, Racial Equality Directive and Employment Equality Directive. The meaning of provisions is presented through analysis of cases delivered by the European Court of Human Rights and the case-law of the Court of Justice of the European Union. Comprehensive analysis of the law is ensured by supplementing this body of case-law with decisions and interpretive documents from national courts and equality bodies, as well as other international bodies such as the United Nations Committee on the Elimination of Racial Discrimination, the Council of Europe, European Commission against Racism and Intolerance and the European Committee of Social Rights.

The handbook is avalaible on the website of the Fundamental Rights Agency in English, French and German and other EU languages are in principle to follow later on.

Grand Chamber Judgment in Lautsi: No Violation

Today, the Grand Chamber of the European Court of Human Rights ruled that Italy did not violate the ECHR in the highly publicised case about crucifixes in classrooms in Italian public schools. The judgment in Lautsi v Italy follows two years after an earlier Chamber judgment in the same case and has led to the opposite outcome. The case had been referred to the Grand Chamber at the request of Italy. In a nutshell, the Grand Chamber ruled that the decision whether or not to put crucifixes in classrooms fell within the state's margin of appreciation. Although the cruxifix was above other meanings a religious symbol, the Grand Chamber found no evidence that "the display of such a symbol might have an influence on pupils." It was a rather "passive symbol" as opposed to active teaching on a certain religion or forced participation of students in religious activities. Thus the right to education (article 2 of Protocol one had) in the view of a large majority of the Grand Chamber (fifteen votes to two) not been violated. It held that although the presence of crucifixes made Italy's majority religion visible in classrooms, this as such did not amount to indoctrination.

This is probably the case with the largest number of state party interventions ever to come before the Court so far, including both states, NGOs, members of the European Parliament and others, and also one of the cases with the most elaborate concurring and dissenting opinions (18 pages in total).

The European Parliament Platform for Secularism in Politics has already issued a press release in which they deplore the judgment as a slap in the face for secularism. According to the chair of the platform, Dutch MEP Sophie in 't Veld, "This ruling is effectively scrapping the separation of church and state. The Grand Chamber apparently accepts that governments may impose a particular religion on its citizens. It is shocking that such a medieval practice gets the backing of the Grand Chamber. After centuries of enlightenment, we still have to fight against theocracy."

I still need to read the judgment in more detail, but my first impression is that the Grand Chamber did a better job at cutting this very difficult Gordian knot than the Chamber previously did, with nuance and leaving leeway for future cases in which children do directly suffer from religious pressure in schools and where the European Court would find violations. One might also argue that in the current political climate, with incessant attacks on the Court's jurisprudence in a number of European countries, a highly mediatised judgment as the present one, leaving explicit room for a country's own traditions and margin of appreciation albeit still obviously with the Court guarding the outer limits, is wisely timed from a juridico-political perspective.

For my earlier comments on the Chamber judgment, see here. For the Court's press release about today's judgment, see here and for the webcast of the hearing in the case before the Grand Chamber, click here.

Undoubtedly, this Grand Chamber judgment will elicit as much or even more discussion than the previous one in the same case.

Case Note to Gäfgen v Germany in International Legal Materials

I have just posted on SSRN my introductory case note to the European Court's Grand Chamber judgment in the case of Gäfgen v Germany, on which I posted earlier here, as it was published in the International Legal Materials of the American Society of International Law (volume 49, no. 6, 2010). This is the abstract:

This case note introduces and contextualises the key aspects of the European Court of Human Rights Grand Chamber judgment in the case of Gäfgen v Germany, in which several violations of the ECHR were found. The case concerned the threat of torture by police officers when questioning a suspect and the role this played in the ensuing trial. Also relates to the issue of 'fruit of the poisonous tree'.