Article on Islam, Secularism and the ECHR

The newest issue of the Michigan Journal of International Law (vol. 32-4, 2011) includes an article on the ECHR, entitled 'Islam in the Secular Nomos of the European Court of Human Rights' written by Peter G. Danchin of the University of Maryland. sine it contains no abstracts, this is the table of contents for your information:

Introduction

I. The Concept of the Secular Public Sphere
A. The Antinomies of Secularism
1. The Right to Freedom of Religion and Belief
2. Public Reason and Private Faith
3. The Authority of Public Reason
B. Rethinking the Secular
C. Between Rationality and Reason

II. Religious Freedom in ECHR Jurisprudence
A. The Rights of Religious Minorities
B. Freedom from Injury to Religious Feelings
C. The Claims of Muslim Communities

III. Islam in Article 9 Jurisprudence
A. The Scope of the Right to Religious Freedom
1. Enlightenment Rationalism
2. Value Pluralism
3. Pluralism and Islam
B. Public Order and the Rights of Others
1. Rival Enlightenments
2. From Blasphemy to Incitement to Religious Hatred
C. Is “Secularism” Necessary in a Democratic Society?

Conclusion

New Academic Articles on the ECHR in French

The newest issue of the Revue trimestrielle des droits de l'homme has been published (No. 88, October 2011). It includes the following ECHR-related articles:

* Dean Spielmann, La reconnaissance et l’exécution des décisions judiciaires étrangères et les exigences de la Convention européenne des droits de l’homme : Un essai de synthèse.
* Frédéric Vanneste, Droit international général et droit international des droits de l’homme : l’apport de la Cour européenne des droits de l’homme.
* Rodolphe Mésa, Les mesures de sûreté post sententiam privatives et restrictives de liberté dans le droit de la Convention européenne des droits de l’homme.
* Elisabeth Lambert-Abdelgawad, L’exécution des arrêts de la Cour européenne des droits de l’homme (2010).
* Michel Puéchavy, La difficile conciliation de l’oralité des débats avec le respect du principe du contradictoire (obs/s. Cour eur. dr. h., Labbé c. France, 12 octobre 2010).
* Amandine Philippart de Foy, La provocation policière devant la Cour européenne des droits de l'homme (obs/s. Cour eur. dr. h., Bannikova c. Russie, 4 novembre 2010).
* Jean-Pierre Marguénaud, Le nom du couple binational devant la Cour européenne des droits de l'homme (obs/s. Cour eur. dr. h., Losonci Rose et Rose c. Suisse, 9 novembre 2010).
* Aurélien Antoine, Quand Naomi Campbell fait la une… du droit de la Convention européenne des droits de l’homme (obs/s. Cour eur. dr. h., MGN Limited c. Royaume-Uni, 18 janvier 2011).
* Cédric Raux, La politique d’asile de l’union européenne dans le viseur de la Cour européenne des droits de l’homme (obs/s. Cour eur. dr. h., M.S.S. c. Belgique et Grèce, 21 janvier 2011).

More Administrative Autonomy for the Court

Earlier this week, the Committee of Ministers of the Council of Europe adopted resolution CM/Res(2011)9, which amends the Staff Regulations with regard to delegation of staff management powers to the Registrar of the European Court of Human Rights. The resolution enables the delegation of certain administrative powers from the Secretary General of the Council of Europe to the Registrar. This fits in the Interlaken process which is aimed at making the Court mroe efficient. More administrative autonomy is one way of doing so. Since the resolution is relatively short, I reproduce it here in full:

The Committee of Ministers, in accordance with Article 16 of the Statute of Council of Europe,

Having regard to Articles 36, paragraph c, and 37, paragraph b, of the Statute of the Council of Europe;

Having regard to Article 24, paragraph 1, of the European Convention on Human Rights and Rule 17, paragraph 1, of the Rules of Court;

Having regard to the Staff Regulations and Appendices thereto;

Having regard to the decisions taken at the High-level Conference on the Future of the European Court of Human Rights (Interlaken, 18-19 February 2010) and notably point 8 (b) of the Action Plan adopted at that conference, which calls upon States Parties and the Council of Europe to grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe;

Bearing in mind the need to preserve the institutional coherence and integrity of the Council of Europe as a whole;

Considering it necessary to accord the Court an appropriate level of administrative autonomy in staff matters;

Considering that Articles 36, paragraph c, and 37, paragraph b, of the Statute of the Council of Europe do not preclude a delegation of decision-making authority in staff related matters in the name and on behalf of the Secretary General;

On a proposal by the Secretary General, who has consulted the Staff Committee under Article 6, paragraph 1, of the Regulations on staff participation (Appendix I to the Staff Regulations),

Resolves as follows:

Article 1The last sentence of paragraph 2 of Article 59 of the Staff Regulations shall henceforth read as follows:

“The expression “administrative act” shall mean any individual or general decision or measure taken by the Secretary General or any official acting by delegation from the Secretary General.”

Article 2An article entitled “Article 61bis – Decisions relating to the Registry of the European Court of Human Rights” and worded as follows shall be added before Article 62 at the beginning of Part VIII: Final provisions of the Staff Regulations:

“1. By delegation from the Secretary General, the Registrar of the European Court of Human Rights shall take decisions relating to the Registry under the following provisions of these Regulations and Appendices hereto:

a. Article 3, paragraph 2

b. Articles 11 and 13, Article 21 and Article 22bis, paragraphs 1 to 3bis. For the purpose of Article 22bis, paragraph 1, the Deputy Registrars shall have the competence of Head of Major Administrative Entity

c. Article 25, paragraph 2, Article 26 with regard to facts and information concerning the Court, Article 27, paragraphs 1 and 2, with regard to the work of the Court, Article 28 with regard to information concerning the Court, and Articles 32 to 36

d. Article 52

e. Articles 54, 56 and 57 to the extent the alleged disciplinary offence concerns the substantive work of the Court

f. Appendix II: Regulations on appointments

i. Article 3

ii. Article 5, paragraphs 1 and 2. For the purpose of paragraph 1bis, the Deputy Registrars shall have the competence of Head of Major Administrative Entity

iii. Articles 6 and 7

iv. Article 15

v. Article 16, paragraphs 2 to 5

vi. Articles 17 and 18

vii. Article 21, paragraphs 1 to 4

viii. Article 24, paragraphs 1 to 14 and 16. The application of Article 24, paragraphs 2, 7, 10 and 13, shall be without prejudice to the Secretary General’s power to set out, in a Rule, conditions for granting additional steps to candidates with more extensive professional experience

ix. Article 25, paragraphs 1, 2, 5a and 5b, with regard to appointment to grade A6

x. Articles 28 and 29

a. Article 13 of Appendix IV: Regulations governing staff salaries and allowances

b. Appendix VII: Regulations on unpaid leave, with the exception of Article 6, paragraph 1

c. Appendix VIII: Regulations on extra duties and night work

d. Appendix IX: Regulations on part-time work, with the exception of Article 9, paragraph 3

e. Appendix X: Regulations on disciplinary proceedings to the extent the alleged disciplinary offence concerns the substantive work of the Court

2. The authority exercised by the Secretary General under Article 2 of these regulations with regard to the Registry shall have regard to paragraph 1 above.

3. The Registrar shall take the decisions referred to in paragraph 1 above in conformity with these regulations and appendices hereto and any implementing provisions issued by the Secretary General in accordance with these regulations and appendices hereto. The Secretary General shall inform the Registrar of any complaint under Article 59 of these regulations relating to such decisions

4. For the purposes of application of paragraph 1 above, the recommendations of the Appointments Board under the provisions of Article 9, Article 12, Article 13, Article 14, Article 16, paragraph 1, and Article 20 of Appendix II of Regulations on Appointments, shall be made to the Registrar.”

Article 3An article entitled “Article 61ter – Regrading of posts at the Registry of the European Court of Human Rights” and worded as follows shall be added after Article 61bis of the Staff Regulations: “With respect to the regrading of posts at the Registry of the European Court of Human Rights, the Secretary General shall exercise the powers provided in Article 2, paragraph 5, of Appendix III: Regulations on the table of posts, with the agreement of the Registrar, except where, in the context of an overall job classification review, the Secretary General exercises this power in a way which affects posts in all sectors and Major Administrative Entities of the Council of Europe.”

Article 4A paragraph 1bis shall be inserted after paragraph 1 of Article 21bis of the Regulations on Appointments (Appendix II to the Staff Regulations) and worded as follows: “The provisions of paragraph 1 do not apply to staff members carrying out their duties at the Registry of the European Court of Human Rights.”

Article 5Article 26, paragraph 2, indent a, of the Regulations on Appointments (Appendix II to the Staff Regulations) shall be deleted.

Article 6This resolution shall enter into force on 1 January 2012.he

New Book on Positive Obligations and the ECHR

A new book has been published with Routledge by Dimitris Xenos (of the European Public Law Organisation in Athens)entitled 'The Positive Obligations of the State under the European Convention of Human Rights'. This is the abstract:

The system of the European Convention of Human Rights imposes positive obligations on the state to guarantee human rights in circumstances where state agents do not directly interfere. In addition to the traditional/liberal negative obligation of non-interference, the state must actively protect the human rights of individuals residing within its jurisdiction. The liability of the state in terms of positive obligations induces a freestanding imperative of human rights that changes fundamentally the perception of the role of the state and the participatory ability of the individual, who can now assert their human rights in all circumstances in which they are relevant. In that regard, positive obligations herald the most advanced review of the state’s business ever attempted in international law.

The book undertakes a comprehensive study of positive obligations: from establishing the legitimacy of positive obligations within the system of the Convention to their practical implementation at the national level. Analysing in depth legal principles that pervade the whole system of the Convention, a coherent methodological framework of critical stages and parameters is provided to determine the content of positive obligations in a consistent, predictable and realistic manner.

This study of the Convention explains and critically analyses the state’s positive obligations, as imposed by the European Court of Human Rights, and sets out original proposals for their future development. The book will be of interest to those who study, research or practice public law, civil rights and liberties or international/European human rights law.

Trying it Twice

Rare are the cases in which applicants win their case in Strasbourg and then return to Strasbourg and again win a case when they are not satisfied with the way the state handles the outcome. This happened in this week's judgment in the case of Emre v. Switzerland (No. 2) . Emre is a Turkish national who had been living in Switzerland from the age of six. In his late teens and early twenties, he was convicted for a range of offences, including robbery and assault. As a result, he was expulsed and an indefinite ban on re-entry was pronounced by domestic courts in Switzerland. Emre lodged a complaint with the European Court of Human Rights, arguing that this violated his right to private andd family life (Article 8 ECHR). In August 2008, the Court held in its first judgment on the situation that this was indeed the case. Indicating in detail a wide range of factors (nature of the offences, severity of the penalties, strength of his ties with Switzerland and Turkey, among others) to be taken into account, it concluded that the Swiss authorities had not struck a fair balance. To their credit, the Swiss courts subsequently re-assessed the case and came to a new conclusion: the ban would now be for ten years instead of indefinitely. Arguing that this new judicial assessment constituted a new violation of his rights, Emre went to Strasbourg again.

The question then presented itself not only whether the new, shorter ban constituted a violation of Article 8 but also whethwer the previous judgment of Switzerland had been complied with (the obligation of Article 46 ECHR). The Court dealt with these two issues in conjunction. It assessed that the ten year ban did not comply with the conclusions and spirit of its own 2008 judgment. It held that the Swiss domestic court (le Tribunal fédéral) had subsituted the Court's balancing of interests by its own. Even if one would suppose, the Court went on to ascertain, that such a thing would be admissible, such renewed balancing should be complete and convincing in dealing with all the relevant factors the Court had identified. The Swiss court had, in the European Court's view, mainly focused on the element of unlimited duration at the detriment of other factors. Ten years was still disproportionate, in the Court's eyes.

And then, in a rather far-reaching conclusion, the Court held the following (in para. 75):

"l’exécution la plus naturelle de l’arrêt de la Cour, et celle qui correspond le plus à la restitutio in integrum, aurait été d’annuler purement et simplement, et avec effet immédiat, l’interdiction de territoire contre le requérant. A supposer même qu’un autre résultat aurait pu être acceptable, la Cour estime que la nature obligatoire des arrêts au sens de l’article 46 § 1 et l’importance de leur exécution effective, de bonne foi et compatible avec les « conclusions et l’esprit » de l’arrêt auraient commandé, dans les circonstances concrètes de l’affaire, un examen plus complet des considérations du premier arrêt de la Cour."

Thus, the most "natural interpretation" (whatever that may mean in legal terms) and the one closest to restitutio in integrum would have been to annul immediately and completely the ban. And even if another result (a shorter ban) would have been acceptable, a good faith execution of the Strasbourg judgment by Switzerland would have necessitated a more complete application of the considerations in the first judgment of the European Court in this case.

What does this tell us? That is not easy to answer. The Court leaves the door slightly open for a state's own assessment, as long as it scrupulously applies all considerations indicated by the Court, or in the alternative the more "natural" solution is one which is as close as possible to restitutio in integrum. Is this another step towards more specific application of the Court's judgments? It certainly requires taking all the pointers the Court gives when finding a violation very seriously, even if no precise indication is given in the operative part of the judgment under Article 46 ECHR. The judgment shows that in this case the most beneficial solution for the applicant should have been chosen if the state was not prepared to be procedurally thorough enough to work in a convincing and complete way with all the Court's yardsticks. The more obedient the state is procedurally (following the Court's criteria), the more the Court is prepared to give leeway on the material assessment (the actual outcome of the balancing), it may seem. How this would apply to other situations than re-entry bans, and to situations covering other articles than 8 ECHR, remains to be seen ...

Judges Malinverni (the judge elected in respect of Switzerland, now succeeded by Helen Keller) and Björgvinsson dissented, arguing that under Article 46 ECHR states have the liberty to chose the way in which they implement the Court's judgments, especially - as in this case - when the judgment did not indicate specific measures to be taken. The renewed assessment by domestic courts, in their view, fell within the margin of appreciation.

The judgment itself is in French but the press release in English can be found here.

New Book on Non-ECHR Monitoring in Council of Europe

Gauthier de Beco, of the Centre for Philosophy of Law at the University of Louvain, has written 'Human Rights Monitoring Mechanisms of the Council of Europe' published with Routlegde. Finally a book that introduces and systematically compares, in short introductions in one volume, all the non-ECHR human rights monitoring mechanisms of the Council of Europe. This is the abstract:

The book studies the human rights monitoring mechanisms of the Council of Europe. It provides an in-depth examination of six such mechanisms: the Commissioner for Human Rights, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT), the European Committee of Social Rights (the ECSR), the Advisory Committee on the Framework Convention for the Protection of National Minorities (the ACFC), the European Commission against Racism and Intolerance (ECRI) and the Committee of Experts of the European Charter for Regional or Minority Languages (the CECL).

The human rights monitoring mechanisms of the Council of Europe seek to establish a permanent dialogue with governments to encourage them to better implement human rights treaties. They function principally through the use of national reports, on which basis they make recommendations, and may also visit or question states directly. The book looks at each mechanism in turn, discussing their composition, functions and working methods, as well as their relationship with other actors. It includes both a general discussion of the role of European human rights monitoring mechanisms as well as a comparative analysis of these mechanisms. The book aims to provide a clear understanding of the underlying approach of European human rights monitoring mechanisms and the challenges faced by them in terms of effectiveness. It will be useful for practitioners and students alike, especially those following courses in human rights or related fields.

And these are the chapter with contributors:

* Preface by Thomas Hammarberg
* Introduction: The Role of European Human Rights Monitoring Mechanisms, Gauthier de Beco
* 1. The Commissioner for Human Rights, Lauri Sivonen
* 2. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (The CPT), Renate Kicker
* 3. The European Committee of Social Rights (The ECSR), Olivier De Schutter and Matthias Sant’Ana
* 4. The Advisory Committee on the Framework Convention for the Protection of National Minorities (The ACFC), Gauthier de Beco and Emma Lantschner
* 5. The European Commission against Racism and Intolerance (ECRI), Lanna Yael Hollo
* 6. the Committee of Experts of the European Charter for Regional or Minority Languages (The CECL)
* Robert Dunbar Conclusion: A Comparative Analysis of European Human Rights Monitoring Mechanisms, Gauthier de Beco

Hearing on the Katyń Massacre Case

Today history is featuring in the European Court of Human Rights. A hearing is currently being held on the aftermath of the Katyń massacre, a notorious episode of the Second World War. In 1940 the secret police of the Soviet Union murdered over 21,000 people, including many Polish army officers after the Soviets had occupied parts of Poland. When later on in the war the Nazis discovered the mass graves, the Soviets denied responsibility and continued to do so until 1990, when an official investigation was started, which was later taken over by the Russian Federation after the dissolution of the USSR. A few years ago a number of relatives of those murdered in Katyń turned to the European Court in Strasbourg to complain about the inadequacy of the investigation. This is what the Court's press release has to say about the case so far:

The investigations into the mass murders were started in 1990. The criminal proceedings lasted until 2004 when the decision to discontinue the investigation was made. The text of the decision has remained classified to date and the applicants did not have access to it. On 26 November 2010 the Russian Duma adopted a statement about the “Katyń tragedy”, in which it reiterated that the “mass extermination of Polish citizens on USSR territory during the Second World War” had been carried out on Stalin’s orders and that it was necessary to continue “verifying the lists of victims, restoring the good names of those who perished in Katyń and other places, and uncovering the circumstances of the tragedy...".

The applications were lodged with the Court on 19 November 2007 and 24 May 2009
respectively. They were communicated to the Russian authorities respectively in
October 2008 and November 2009. The Court declared admissible, on 5 July 2011, the applicants’ complaint under Article 2 (right to life) of the European Convention on Human Rights, namely that the Russian authorities failed to carry out an adequate criminal investigation into the circumstances surrounding the deaths of their relatives. At the same time, the Court joined to its examination of the merits of the complaint the issue of temporal jurisdiction, in other words, whether the Court could examine the adequacy of an investigation into events which had occured before Russia ratified the Convention.

In the same decision, the Court also declared admissible the applicants’ complaint that the way the Russian authorities reacted to their requests and applications amounted to ill-treatment under Article 3 (prohibition of inhuman or degrading treatment) of the Convention.

From a legal point of view the case indeed raises important questions on the ratione temporis jurisdiction of the Court. For the relatives of the victims, one may hope the case will contribute indirectly to more clarity on what happened and who was responsible. A lot of historical works have been published on the tragic events of 1940, but a full official investigation by the Russian authorities is still lacking.

The hearing will be available online this afternoon here. The earlier partial admissibility decision of July 2011 can be found here.

Article on Supreme Courts and Evolutive Interpretation of the ECHR

Eirik Bjorge of the universities of Oxford and Oslo has published an article in the International Journal of Constitutional Law (Vol. 9, issue 1, 2011), entitled 'National Supreme Courts and the Development of ECHR Rights' in which he looked at the cases of the United Kingdom, France and Germany. This is the abstract:

The evolution of rights under the European Convention on Human Rights (ECHR) has in recent years engendered the question of how far national supreme courts ought to go in interpreting the Convention standards evolutively. Should national courts, in other words, play an active role in the development of the Convention, or must they defer this development to the Court? Examining the jurisprudence of national supreme courts in the U.K., France, and Germany, the present article examines this question both “normatively,” by way of looking at the external exigencies of the Strasbourg jurisprudence, and “descriptively,” by way of looking at what in point of fact the national courts have done in this regard. The three national judiciaries studied here have approached this in various ways. The common theme is that all three systems have gone very far in taking onboard a national concept of the ECHR precept of “evolutive interpretation.”

A History of Violations in Statistics per State

The European Court of Human Rights has published an online statistical overview of its entire history of judgments grouped per state in pie charts 'Statistics on Judgments per State'. It covers the whole period of 1959 to 2010. For each country it shows a division into which rights were mostly at stake and what the outcome of the proceedings was (violation, no violation, striking out of list, friendly settlement).

The pie charts show that, as is widely known, most violations concern the right to a fair trial (including the notorious problem of too lengthy judicial proceedings), the right to liberty and the protection of property (these taken together take up 71% of the total). But the differences between countries are quite striking. Sometimes this is due to the relatively small number of judgments concerning a certain counry. For Andorra 50% of the very small number of violations found was about the prohibtion of discrimination. Often, it gives an insight into where the biggest human rights problems for a particular country can be found (at least within the sphere of ECHR rights). For Hungary, for example, a striking 82% of violations concerned the length of proceedings, in Bosnia 32% of violations related to the protection of property. The same variety can be found in the outcome of proceedings: whereas for Bulgaria and Russia only 1% ends up in friendly settlements, for Iceland this is 25% percent. Even taking account the obvious difference in size between the countries and the number of complaints, it also might show a different attitude in working towards outcomes which are acceptable for both applicants and states. For Turkey, for example, which also has to deal with a high numer of complaints, the percentage is 8%.

The overview also shows the grand total of the Court's history: 96% of all applications was either inadmissible or struck out. Only 4% ended up in a judgment. Again a clear pointer that any concerns or fears that the Court is encroaching on a large scale on national powers should be put into perspective.

European Yearbook on Human Rights 2011 Published

The newest edition of the European Yearbook on Human Rights (2011) has been published. The yearbook includes a very wide range of articles on human rights, including a number on the ECHR. This is the abstract:

In the human rights field, 2010 was a year both of continuity and reform: from the 10th anniversary of the European Charter on Fundamental Rights and the quickening pace of the EU’s accession to the European Convention on Human Rights to the reform of the Human Rights Council.

Defining and discussing key developments in human rights in Europe and in the world, the third edition of the European Yearbook on Human Rights brings together 33 contributions by renowned human rights experts that provide a much needed overview and much sought after analysis.

Edited jointly by representatives of four major European human rights research, teaching and training institutions, the Yearbook 2011 contains extensive sections on developments in the field of the three main organizations charged with securing human rights in Europe: EU, Council of Europe and OSCE. A further chapter contains contributions on the role of civil society in human rights protection and on cross-cutting topics.

Holistic in its approach, but detailed in its analyses, the European Yearbook on Human Rights 2011 provides its readers with a comprehensive overview of the human rights situation in Europe in 2010. The impressive array of authors – academics and diplomats, practitioners and human rights experts – makes the book essential reading for anyone interested in human rights in Europe and beyond.

The articles relating to the European Convention on Human Rights are:

* L’adhésion de l’Union européenne à la Convention européenne des droits de l’homme et des libertés fondamentales, by J. Jacqué (p. 143-158)
* Accession revisited: will fundamental rights protection trump the European Union's legal autonomy, by P. Gragl (p. 159-172)
* The role of interim measures indicated by the ECtHR under Rule 39 for the protection of aliens against their removal contrary to the ECHR, by A. Szklanna (p. 361-374)
* Strasbourg’s interim measures under fire: does the rising number of state incompliances with interim measures pose a threat to the European Court of Human Rights? by Y. Haeck, C. Burbano Herrera and L. Zwaak (p. 375-403)
* "No significant disadvantage" - first case-law on the new admissibility criterion introduced by Protocol No. 14 to the European Convention on Human Rights, by S. Baier (p. 405-413)
* Implementation of judgments of the European Court of Human Rights as a tool to establish a "language of law": the case of Moldova, by I. Lupusor (p. 415-425)
* Across the universe? The extra-territorial application of the European Convention on Human Rights, by R. Lawson
(p. 427-444)
* The litigation practices of non-governmental organizations before the European Court of Human Rights: an overview, by L. van den Eynde (p. 539-548)