Call for Papers EU - ECHR

The Surrey School of Law and the Surrey European Law Unit (SELU) have issued a call for papers for an interdisciplinary workshop entitled ‘A Europe of Rights: the EU and ECHR’. It will be held on 8 and 9 June. This is the call:

This workshop seeks submissions which assess the relations between the European Union and the European Convention of Human Rights. It aims to stimulate a debate on both the successes and challenges of the EU-ECHR relationship. The workshop is aimed at young as well as established scholars with an interest in human rights law and policy.

Papers are invited on themes such as, but not limited to, the following aspects:

· Accession of the EU to the ECHR: technical and institutional issues

· Substantive questions related to the jurisprudence of the CJEU and the ECtHR

· Potential lacunae in the EU’s protection of fundamental rights

· Application of ‘European’ human rights law by national courts

· Legitimacy of ‘European’ human rights adjudication.

Applicants are asked to submit an abstract of no more than 400 words on their proposed papers. We are delighted to announce that selected papers will be published (subject to editorial review) in a special edition of the Surrey Law Working Paper Series.

The deadline for submission of abstracts is Friday, 30 March 2012. Successful applicants shall be notified no later than 10 days of this date. The full-text papers are expected to be submitted no later than 15 May 2012.

Dean Spielmann, Judge of the European Court of Human Rights and President of Section V of the Court will deliver the keynote address on 8 June 2012.

We are happy to be in a position to award two scholarships of £250 each to participants who would otherwise not be able to attend the workshop. If you wish to be considered for a scholarship, please indicate this on your proposal and provide us with the reasons why you consider yourself eligible. Otherwise, we regret that we are generally not in a position to offer financial support for travel to the conference or for accommodation.

Abstracts should be submitted to: t.lock at surrey.ac.uk (Dr Tobias Lock).

Newest Issue of HRLR

The newest issue of the Human Rights Law Review (vol. 12, issue 1, March 2012) is out now and includes a number of ECHR-related articles. First, the article 'Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?' by Baroness Brenda Hale, justice of the Supreme Court of the United Kingdom. This is the abstract:

This article takes its title from Lord Rodger's oft cited dictum in Secretary of State for the Home Department v AF (No 3): ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. The article focuses upon the following two questions: What should be the approach of the Supreme Court of the United Kingdom to interpretations of the European Convention on Human Rights by the Strasbourg Court and what should be the approach of the Strasbourg Court to the decisions of the highest courts in member states? On the first question, the ‘mirror’ approach and criticisms of it are considered and examples are given of the Supreme Court following its own, rather than a pan-European, approach. On the second question, the view of the new president of the Strasbourg Court is welcomed.

Furthermore two shorter articles:

* Petr Muzny, 'Bayatyan v Armenia: The Grand Chamber Renders a Grand Judgment'
* Christopher Michaelsen, ‘From Strasbourg, with Love’—Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights'

Anti-Gay Speech Judgment

In the recent case of Vejdeland and others v Sweden the Court for the first time issued a ruling on offensive speech in relation to sexual orientation. The case centered on the conviction of four men who had entered a secondary school and circa 100 leaflets in and on lockers of the school's pupils. The leaflets, made by the organisation 'National Youth' were vehemently anti-homosexual. They criticised what they called 'homosexual propaganda', calling homosexuality a 'sexual deviance' which had a 'morally destructive effect on the substance of society'. They stated that the 'promiscuous' way of life of homosexuals was one of the main causes of HIV/AIDS and that homosexual organisations were trying to 'play down peadophilia'. The applicants were convicted in Sweden for agitation against a national or ethnic group. Under Swedish law this anti-hate speech provision in the criminal code also related to threats or expressions of contempt directed against people with allusion to their sexual orientation.

The applicants lodged a complaint with the European Court of Human Rights arguing that the conviction violated their freedom of expression. They contended that their leaflets did not insult homosexuals and that, moreover, they were not aimed at spreading hatred but rather at encouraging discussion in schools on the issue and providing pupils with arguments in that discussion.

The European Court unanimously found no violation of the freedom of expression. Sweden had not overstepped the boundaries of the ECHR by combatting this form of hate speech. The Court accepted that the conviction constituted an interference with the freedom of expression under article 10 of the Convention, but that it had been lawful - the prohibition in the penal code being sufficiently clear and foreseeable - and had pursued the legitimate aim of protecting the 'reputation and rights of others'. On the latter point, the Court did not offer any further explanation - thereby not clarifying whether the impugned statements were potentially just hurtful to homosexuals or to society in general. This is a key point of principle in combating any form of hate speech.

As often, the Court's main assessment focused on whether the interference had been 'necessary in a democratic society'. It answered this question in the affirmative. It is here that the Court had to walk a fine line in deciding whether the leaflets were merely to 'offend, shock or disturb' (but still allowed) or rather were inciting to hatred. A number of elements were decisive in the Court's reasoning. First, the wording of the statements themselves amounted to 'serious and prejudicial allegations'. Although the leaflets may not directly have urged people to commit hateful acts, the Court referred to earlier case-law (Féret v. Belgium) in which it had held that 'inciting to hatred does not necessarily entail a call for an act of viooence or other criminal acts.' In addition, the statement of principle that discrimination on the basis of sexual orientation is as serious as racial or ethnic discrmination was extended from a right to private life context (Smith and Grady v. United Kingdom) to freedom of expression issues. A second decisive element in the Court's argumentation was the targeted audience of the leaflets - in the Court's words 'young people who were at an impressionable and sensitive age'. Thirdly, the protected context: a school, which was not attended by any of the applicants and to which they did not have free access. Fourthly, the Supreme Court of Sweden had weighed relevant aspect itself, including the finding that the statements on the leaflets had been 'unnecessarily offensive'. Finally, the height of the sentences: suspended fines and, in one case, probation: the Court did not find these excessive. In conclusion, the court found no violation of article 10 ECHR.

Although the judgment was unanimous, it apparently led to a lot of discussion in camera. no less than three different concurring opinions, by five judges in total, were added to the judgment. It shows the judicial and moral struggle the Court faced in deciding the case. As the above-mentioned contextual elements in the Cour't's balancing act show, the Court tried to make its reasoning as case-specific as it could, but it did not escape value-judgments in holding the leaflets to be unacceptable. Judges Spielmann and Nussberger point out that this would have necessitated stronger reasoning. For example, the Court should have assessed whether another aim was hidden behind the 'apparent aim' of initiating debate at school: an agenda to 'degrade, insult or incite hatred' against people on grounds of sexual orientation. The judges point out that not only do members of the LGBT commmunity continue to face 'deeply rooted prejudices, hostility and widespread discrimination all over Europe', but also that 'homophobic and transphobic bullying in education settings' is a real problem that may justify restirctions on the freedom of expression. A different contextual analysis with more emphasis on the LGBT context and the educational context would have strengthened the Court's judgment. I agree. Judges Yudskivska and Villiger go even a step further and argue that these forms of hate speech are not a mere balancing exercise between the people who express views and the people targeted by these views. Considering that hate propaganda always inflicts harm, one should not wait for 'real and immediate danger' to start combatting them. They warn of a climate in which matters which are no longer unspeakable are also no loger undoable. Thus, countering these expressions are a matter for all society, not just for the targeted group.

Leaving aside the contested argumentation on content, which indeed could have been more precise, the jugdment is still a very important milestone, both symbolically and in practice, in countering intolerance against people with different sexual orientations than the majority.

See also the recent fact sheet on hate speech on the website of the Court, which already includes the Vejdeland case. Recommended as well are reports by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, Interights (who also intervened in the case as a third party together with the International Commission of Jurists), and by colleague bloggers at Strasbourg Observers.

New Documents on Selection of Judges and Reform Measures Requiring ECHR Amendments

Two important documents of the Council of Europe's Steering Committee on Human Rights (CDDH), where much of the preparations for reforms happen, have been put online. The first are 'Draft Committee of Ministers’ Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights' accompanied by an Explanatory Memorandum. These contain detailed requirements on the selection process on the national level of candidates to the European Court of Human Rights. This is meant to enhance the transparency and quality of the selection process. Later on in the year, the Committee of Ministers will probably adopt these guidelines.

Secondly, as part of the Interlaken process, the CDDH has investigated which reforms would require amendments of the ECHR: 'Final Report on Measures Requiring Amendment of the European Convention of Human Rights'. It is meant to be considered by the Ministerial Conference organised by the United Kingdom Chairmanship of the Committee of Ministers on 18-20 April 2012. This very informative document encompasses a whole range of widely debated issues. This is the table of contents:

* CDDH Final Report on measures requiring amendment of the European Convention on Human Rights

* Appendix I: Terms of reference
* Appendix II: List of documents (selected reference texts)
* Appendix III: CDDH Report on measures to regulate access to the Court
- Section 1: A system of fees for applicants to the Court
- Section 2: Compulsory legal representation
- Section 3: Introduction of a sanction in futile cases
- Section 4: Amendment of the “significant disadvantage” admissibility criterion
- Section 5: A new admissibility criterion relating to cases properly considered by national courts
* Appendix IV: CDDH Report on measures to address the number of applications pending before the Court
- Section 1: Increasing the Court’s capacity to process applications
- Section 2: Introduction of a “sunset clause”
- Section 3: Conferring on the Court a discretion to decide which cases to consider
Appendix V: CDDH Report on measures to enhance relations between the Court and
national courts
- Extending the Court’s jurisdiction to give advisory opinions

Paper on Compliance with ECtHR Judgments

Andreas Von Staden of the Department of Political Science of the University of St. Gallen has posted a paper on SSRN on conmpliance with the European Court's rulings, entitled 'Rational Choice within Normative Constraints: Compliance by Liberal Democracies with the Judgments of the European Court of Human Rights'. This is the abstract:

In this paper, I propose a hybrid constructivist-rationalist theory of compliance with the judgments of the European Court of Human Rights (ECtHR) and investigate its validity both quantitatively and qualitatively, based on a comprehensive database on the compliance status of all ECtHR judgments rendered up until 2010. While much research on state compliance with normative obligations has remained wedded either to a constructivist, norm-based perspective or to a rationalist analytic lens that foregrounds actor preferences and cost-benefit calculations, a fully specified model of compliance has to allow for the simultaneous operation of the logics of appropriateness and of consequences. Specifically, I argue that the question whether to comply with a judgment needs to be separated analytically from the question of how to comply. In the context of European liberal democracies, the first question is best answered by positing a normative compliance pull exerted by the judgments of a duly constituted court, even one operating beyond the boundaries of the state. At the same time, norms as well as the judgments that interpret and apply them frequently retain an element of indeterminacy that provides states with alternatives as to how to comply with a given judgment. In light of such a choice space, and given an assumed preference for the status quo ante, governments will tend to choose those institutional and interpretive options that minimize - materially and normatively - the domestic impact of an adverse judgment and will, as a result, in most cases choose narrow or otherwise restrictive compliance.

Seminar in London on the European Court

Next week, on Wednesday 22 February a seminar on the European Court of Human Rights will be organised at Europe House, Smith Square, Westminster in London. The seminar is entitled 'Some issues around Reform of the European Court of Human Rights'. This is the programme:

16.00 – 16.10 Introduction by Dr. Martyn Bond, Visiting Professor of European Politics and Policy at Royal Holloway, University of London, author of The Council of Europe: Structure, History, Issues, and UK Press Correspondent for the Council of Europe.

16.10 – 16.40 Baroness Sarah Ludford MEP, Liberal Democrat Justice and Human Rights Spokeswoman

Accession of the EU to the ECHR: what it will mean for Human Rights in Europe.

16.40 – 17.10 Lord Lester of Herne Hill, QC

What Reforms of the Court are really needed?

17.10 – 17.30 Dr. Daniel Holtgen, Spokesperson for the Secretary General, and Director of Communications, Council of Europe

After Reform: what future for the Council of Europe and the Court?

17.30 – 18.00 Question and Answer Session

18.00 – 18.45 Reception

One can register at the following email address: martyn.bond at info-europe.demon.co.uk – preferably before 20 February – to reserve a place as space is limited.

US Supreme Court and ECtHR Judges will meet in Washington DC

The US Department of State and George Washington University Law School are jointly organising a high-level conference in which several US Supreme Court justices will speak and discuss with several European Court of Human Rights Judges. The conference is entitled 'Judicial Process and the Protection of Rights: The US Supreme Court and the European Court of Human Rights' and will take place from 29 February to 2 March. From the Supreme Court Justices Samuel Alito, Stephen Breyer, Anthony Kennedy and Sonia Sotomayor will join and from the European Court (current and former) judges Bratza, Costa, Vajic, Tulkens and Garlicki. In addition the European Court's registrar and deputy registrar and several eminent European and American academics will be there. Please see the official announcement and programme here.

See an article on the conference here.

Speeches of Bratza and Hammarberg

I did not link to them yet, but at the opening of the judicial year in Strasbourg both the Court's President, Sir Nicolas Bratza, and the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, both delivered speeches.

Bratza for the first and also last time (his term as judge at the Court expires in Autumn) spoke as President of the Court. He started with an admonition, referring to the economic crisis:

The temptation is to be inward-looking and defensive, for States as well as individuals. Human rights, the rule of law, justice seem to slip further down the political agenda as Governments look for quick solutions or simply find themselves faced with difficult choices as funds become scarce. It is in times like these that democratic society is tested. In this climate we must remember that human rights are not a luxury.

And he also put matters in perspective: yes, the Ccourt has problems with a large case-load and has therefore been compared to a patient with an illness, but there are also "healthy signs of life": a substantive number of judgments continues to be delivered, inadmissible claims are dealt with more efficiently and the sudden surge in requests for interim measures in the past two years has returned to more normal levels after reforms in dealing with them had been made. On the criticism of the past year the Court's President remarked, in very diplomatic terms, the following:

I do not expect Governments to agree with all the Court’s judgments and decisions and they are naturally free to express that disagreement. Where they feel the need to do so, I would urge them to use terms which do not undermine the independence and authority of the Court and which seek to rely on reasoned argument rather than emotion and exaggeration. Democracy cannot function effectively without the rule of law; there can be no rule of law without respect for an independent judiciary, and that is true at European as well as domestic level.

Hammarberg, to be succeeded this year by Nils Muižnieks of Latvia on 1 april, stressed that the Court has made many key contributions on a range of issues which he also encountered in his own work: the rights of Roma, homosexuals, migrants and persons with disabilities amongst others. A few other notable remarks he made concerned the current reform efforts. Hammarberg emphasized:

However, everything that I have learned has made me believe that there are some features of the system which definitely must be protected through the reform process. One is the possibility of individual petition. Another is the principle of collective guarantee. A third one is the notion of the Convention as a “living instrument”, allowing the Court to make dynamic interpretations of the rights set forth in the Convention.

On the latter point, the Convention as a living instrument, he noted:

I do consider that the Court on the whole has handled this challenge in a proper manner. Criticisms about “judicial activism” or arbitrariness have really not been fair. The approach has been serious. The judges have not introduced just personal ideas; they explore whether there is a consensus on such cases in the superior courts in the member states; they analyse decisions of other international jurisdictions; and they take into account, when relevant, treaty developments in the UN.

Referring to the large case-load, Hammarberg stated:

It must be stressed that the problem is not that people complain, but that many of them have reasons to do so.

At the same occasion a seminar was also held on “How to ensure greater involvement of national courts in the Convention system?”. A webcast of that seminar can be watched here. There you can also find the speeches delivered.

New Publications on the ECHR

Again, a number of new academic publications relating to the European Convention on Human Rights and the Court in Strasbourg. For a fuller overview of recent articles on human rights, from which this is just an ECHR-related excerpt, please consult the very useful monthly Online Contents, compiled by my documentation colleagues here at the Netherlands Institute of Human Rights (SIM).

* F. Korenica and D. Doli, ‘Taking care of Strasbourg: the status of the European Convention on Human Rights and the case-law of the European Court of Human Rights in Kosovo’s domestic legal system’, Liverpool Law Review, vol. 32, no. 3 (2011) pp. 209-223

* G. van der Schyff and A. Overbeeke, ‘Exercising religious freedom in the public space: a comparative and European Convention analysis of general burqa bans’, European Constitutional Law Review, vol. 7, no. 3 (2011) pp. 424-452.

* C. Ryngaert, ‘The European Court of Human Rights' approach to the responsibility of member states in connection with acts of international organisations’, International and Comparative Law Quarterly, vol. 6, no. 4 (2011) pp. 997-1016.

* S. Besson, ‘Evolutions in non-discrimination law within the ECHR and the ESC systems: it takes two to tango in the Council of Europe’, American Journal of Comparative Law, vol. 60, no. 1 (2012) pp. 147-180.

And finally two case notes in the International Legal Materials:

* European Court of Human Rights: M.S.S. v. Belgium & Greece, introductory note by Patricia Mallia, vol. 50, no. 3 (2011) pp. 364-439.
* European Court of Human Rights: Lautsi & others v. Italy, introductory note by Christiane Bourloyannis-Vrailas, vol. 50, no. 5 (2011) pp. 894-927.

Video on Admissibility Criteria

In its continuing quest to better inform citizens of the possibilities and limits of the European human rights protection system, the Court has launched yet a new tool: a short youtube movie which in about three minutes - and with the generous support of the Principality of Monaco, not the state that causes the Court the biggest caseload troubles! - shows what the main admissibility criteria are. Another creative tool!

For the French version, see here.