Today: Seminar on Bridging the Implementation Gap

As a very late announcement, but maybe of interest to those living in the Netherlands: The Netherlands Helsinki Committee, formerly focusing mostly on the OSCE, is today organising a seminar on implementation problems and the ECHR. It is entitled 'Bridging the Implementation Gap - Enlarging Civil Society’s Role in the European Court of Human Rights’ Implementation Process' and takes place in The Hague. This is the conference announcement:

The Netherlands Helsinki Committee (NHC) wishes to stimulate a more serious and consistent implementation of the European Court of Human Rights’ judgments with a view to help bridge 'the implementation gap'. As a civil society organisation, we will focus on the role of NGO’s in the implementation process. To start off our contribution to improved implementation we have planned a seminar entitled

BRIDGING THE IMPLEMENTATION GAP
- Enlarging Civil Society’s Role in the European Court of Human Rights’ Implementation Process -

to take place in The Hague on 31 October 2011. The seminar will be followed by an informal NGO meeting to discuss and adopt an NGO Action Plan on the following day. We would like to cordially invite you to attend and participate in this seminar and contribute to the adoption of the Action Plan.

When discussing the ECtHR with our partners and experts we often notice that they place more emphasis on bringing well-reasoned applications and obtaining equally well-reasoned judgments than on following up on judgments to ensure their full and effective implementation. We are of the opinion that improved implementation has a strong potential to save the ECHR protection system from asphyxiation. Civil society can play a major role in this and a larger role than it has played to date. We define full and effective implementation as taking measures relating to legislation, policy and practice that go beyond the individual case and that remedy the structural problem that is at the root of a violation.

During the seminar we will discuss activities that civil society can initiate to rise to the challenge of bridging the implementation gap. We will invite civil society organisations from across Europe, professionals working at the Council of Europe, Parliamentary Assembly politicians and academics to participate. It is our intention that the seminar serves as the starting point for a Europe-wide civil society alliance to become exceedingly actively involved in the implementation process. This alliance will follow the Action Plan that we will adopt during the informal NGO meeting on the day following the seminar.

The first part of the seminar is dedicated to the importance of implementation and the (potential) role of civil society in the implementation process from the perspective of the Parliamentary Assembly, academia and the NHC. During the second part of the seminar, we will discuss examples of good practice, such as European NGO coalitions established to follow-up on a judgment, examples of structural non-implementation and formal and informal ways to press for implementation available to civil society. You are warmly invited to share your thoughts on this and tell us about initiatives of your organisation during this interactive and rather informal part of the seminar. At the end of the day, we will start brainstorming about an Action Plan and present our preliminary conclusions.

Article on Same-Sex Partners and ECHR

The Child and Family Law Quarterly (vol. 23, No. 1) includes an article entitled 'Families But Not (Yet) Marriages? Same-Sex Partners and the Developing European Convention ‘Margin of Appreciation’ by Nicholas Bamforth of the University of Oxford. This is the abstract:

This commentary examines two recent decisions of the First Section Chamber of the European Court of Human Rights, namely Schalk and Kopf v Austria and P.B. and J.S. v Austria. Both are significant in accepting that same-sex partnerships may fall within the ‘protection of family life’ limb of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, but Schalk and Kopf rejects the notion that Convention signatory states are required under Article 12 to admit same-sex couples to the right to marry, and declines to determine whether any minimal level of legal protection must be offered under Article 8. Both decisions highlight the central role currently played by the ‘margin of appreciation’ in this area.

Guide on Admissibility Criteria Translated

The Courts' Practical Guide on Admissibility Criteria, launched at the end of last year, already existed in the Court's working languages English and French. This week, the Guide has been made available in Italian, German, Greek and Bulgarian. Hopefully, up-to-date Russian, Romanian and Turkish translations will follow soon in order to enable access by lawyers from the states from which most applications stem. One may note that the small Principality of Liechtenstein, not really the biggest problem-maker for the Court, has paid for the German translation! Austrian and German lawyers will be grateful.

Report on ECHR and Cypriot Property Issues

The PRIO Cyprus Centre, the Cypriotic branch of the Peace Research Institute Oslo, has published an online report with recommendations on how to move forward in the Cyprus property issue. The report was written by Rhodri Williams, a forced displacement and property restitution expert, and Ayla Gürel, a research consultant at PRIO. It is entitled 'The European Court of Human Rights and the Cyprus Property Issue Charting a way forward'. The report clearly lays bare the ways in which political actors from both sides have used the Court's judgments and it shows convincingly how nuanced the Court's judgments and decisions are, especially the more recent ones. Well worth reading for anyone interested in either property rights or Cyprus! This is the summary:

Since 1995, the European Court of Human Rights has frequently ruled on property claims arising due to the Cyprus problem. Taken as a whole, the resulting judgments have served to establish parameters that should inform any viable resolution of the Cyprus property issue.

The Court’s rulings are not meant to resolve the property issue. However, they do effectively define a set of objective legal norms that any negotiated solution compatible with the European Convention on Human Rights would be expected to satisfy.

The agreed objective of the ongoing Cyprus negotiations is reunification on a bizonal basis. The italicized terms represent a compromise between competing visions of an appropriate Cyprus solution: the Greek Cypriots have long favoured a unitary state while the Turkish Cypriots have typically sought to maintain the distinctive identity of their numerically smaller community. These visions, which would need to be reconciled in any viable solution to the Cyprus problem, are rooted in the two communities’ contradictory perceptions of the post-1974 split.

In this context, the Court’s judgments do no more – and no less – than to exclude the more extreme aspects of the proposals that have been put forward by the two sides. As a result these judgments delineate only the outer parameters of an acceptable solution. Within these parameters there remains much space for political negotiations to arrive at a mutually acceptable compromise.

Country Profiles on the Court's Website

This week the European Court of Human Rights took a new step in making its activities more known. The website of the Court now includes country profiles about all state parties to the ECHR. The profiles include a list of previous and current judges in respect of the country concerned, the country's contribution to the Court's budget and registry (the number of persons of a certain nationality working there), a list of the most important cases, information about the most noteworthy pending cases and a statistical overview of cases for the period 2008-2011 per country. A good way to get a quick overview of the most important human rights problems per country.

Newest Issue of German Law Journal dedicated to ECHR

The newest issue of the respected online German Law Journal (vol 12. No. 10, 2011) is entirely dedicated to ECHR issues. The articles are based on papers presented at University College Dublin in April of this year at a conference entitled "The Legacy and Future of the European Court of Human Rights". This collection of articles was edited by Kanstantsin Dzehtsiarou and Alan Green of UCD and focuses on legitimacy issues amongst others. These are the articles included:

* Legitimacy and the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners, Kanstantsin Dzehtsiarou & Alan Greene

* The European Court of Human Rights: Yesterday, Today and Tomorrow, Mr. Justice John Hedigan

* European Consensus and the Evolutive Interpretation of the European Convention on Human Rights, Kanstantsin Dzehtsiarou

* Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights’ Jurisprudence on LGBT Rights, Sarah Lucy Cooper

* Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights, Alan Greene

* Dismantling the Iron-Cage: the Discursive Persistence and Legal Failure of a “Bureaucratic Rational” Construction of the Admissibility Decision-Making of the European Court of Human Rights, Andrew Tickell

* “A More Secure Europe of Rights?” The European Court of Human Rights, the Court of Justice of the European Union and EU Accession to the ECHR, Noreen O’Meara

* The ECHR, the EU and the Weakness of Social Rights Protection at European Level, Roderic O’Gorman

* The Future of the European Court of Human Rights, Michael O’Boyle

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.