New Joint NGO Statement on Draft Brighton Declaration

Following an earlier open letter, the same group of leading human rights NGOs has published a new joint statement with further comments: 'Joint NGO input to the ongoing negotiations on the draft Brighton Declaration on the Future of the European Court of Human Rights'. The statement emphasizes three main points: it warns against curtailing access to the Court by making the admissibility criteria overly severe, it argues against casting the notions of subsidiarity and margin of appreciation into stone (= into the Convention) since this would curtail the Court's own nuanced approach and, finally, it calls for respite in the reform process after all the new proposals from Interlaken and Izmir - and certainly for civil society involvement in any further reform steps.

Working Paper on ECHR as Living Instrument

George Letsas of University College London has posted a working paper on the evolutive interpretation of the ECHR on SSRN. The paper is entitled 'The ECHR as a Living Instrument: Its Meaning and its Legitimacy'. This is the abstract:

The idea that the ECHR is a living instrument that must be interpreted according to present-day conditions has been a central feature of Strasbourg’s case law from its very early days. This paper begins by providing a general account of the way in which the European Court of Human Rights has understood and used evolutive interpretation, by looking at relevant case law and how it has developed over time (sections 2 and 3). It then moves on to discuss the rationale and justifiability of the doctrine, particularly in relation to the moral foundations of human rights (section 4). The second part of paper (section 5) addresses the general issue of the European Court's legitimacy over contracting states and the role that evolutive interpretation plays in arguments in favour and against legitimacy. It argues that commitment to evolutive interpretation is essential, rather than a threat, to the Court's legitimacy.

Seminar on European Court and Doctrine

The International Institute of Human Rights in Strasbourg is organising a seminar on 10 and 11 May entitled 'La Cour Européenne des Droits de l'Homme et la Doctrine' (The European Court of Human Rights and Doctrine). The seminar will be held in the Court's building and it will be in French. This is the programme:

10 May

14h00-14h30 : Allocution de bienvenue, J-P. Costa, Président de l’IIDH, Ancien Président de la Cour européenne des droits de l’homme; Ch. Mestre, Professeur à l’Université de Strasbourg, Doyen de la faculté de droit.
14h30-14h50 : Propos Introductifs, S. Touzé, Professeur à l’Université de Strasbourg, Secrétaire Général de l’IIDH.

DOCTRINE ET INSTANCE DEVANT LA COUR EUROPÉENNE DES DROITS DE L’HOMME
Présidence : L. Wildhaber, Ancien Président de la Cour européenne des droits de l’homme

14h50-15h10: La place de la doctrine dans les argumentaires des requérants, C. L. Popescu, Professeur, Université de Bucarest
15h10-15h30: La place de la doctrine dans les argumentaires des Etats défendeurs, A.-F. Tissier, Sous-directrice des droits de l’homme, Ministère des Affaires étrangères
et européennes

Pause Café

15h50-16h10: La place de la doctrine dans les argumentaires des tiers intervenants, D. Szymczak, Professeur, Sciences Po Bordeaux.
16h10-16h30: La doctrine comme Conseil devant la Cour, Ch. Tomuschat, Professeur Emérite, Humboldt University de Berlin
16h30-17h30 : Discussion

11 May

DOCTRINE ET PRATIQUE INTERNE DE LA COUR EUROPÉENNE DES DROITS DE L’HOMME
Présidence : J-P. Costa, Président de l’IIDH, Ancien Président de la Cour européenne des droits de l’homme

9h30-9h50: L’oeuvre doctrinale des juges, critère d’élection des juges?, M. De Salvia, Vice-Président de l’IIDH, Ancien Jurisconsulte de la Cour européenne des droits de l’homme, Professeur associé à l’Université Catholique de Milan.
9h50-10h10: La place de la doctrine dans le travail du greffe, P. Dourneau-Josette, Chef de division juridique, Greffe de la Cour européenne des droits de l’homme.

Pause café

10h30-10h50: La place de la doctrine dans le délibéré, A. Kovler, Juge, Cour européenne des droits de l’homme.
10h50-11h10: La doctrine et les débats doctrinaux dans les opinions séparées
des juges, J. Andriantsimbazovina, Professeur, Université de La Rochelle.
11h10-12h00 : Discussion

REGARDS CROISÉS SUR LA DOCTRINE « INTERNE ET EXTERNE »
Présidence : J. Casadevall, Vice-Président de la Cour européenne des droits de
l’homme

14h00-15h00: La production doctrinale des juges – Regards croisés sur l’influence des
positions doctrinales des membres de la Cour, J-P. Marguénaud, Professeur, Université de Limoges; F. Tulkens, Vice-Présidente de la Cour européenne des droits de l’homme.
15h00-15h30: Discussion

Pause café

15h45-16h45: La Cour et sa jurisprudence dans la doctrine – Regards croisés sur
l’analyse et les positions de la doctrine sur la Cour européenne des droits
de l’homme et sur sa production jurisprudentielle, L. Burgorgue-Larsen, Professeur, Ecole de Droit de la Sorbonne, Université Paris I; D. Spielmann, Juge, Cour européenne des droits de l’homme.
16h45-17h15 : Discussion

Conclusions générales
F. Sudre, Professeur, Université de Montpellier.

Registration can be done here.

Aksu Grand Chamber Judgment - short guest post

Today the Grand Chamber of the European Court of Human Rights issued its judgment in the case of Aksu v. Turkey on stereotypes about Roma in state-sponsored books and dictionaries. As in the earlier Chamber judgment, no violations of the Convention were found. My colleague Theo Rosier, of the legal theory institute at Utrecht University, has already read the judgment. Here are his first impressions in a short guest post:

The Grand Chamber today delivered its judgment in the case of Aksu v. Turkey (Application nos. 4149/04 and 41029/04). I think this judgment deserves to be noted because – as far as I know – it is the first judgment of the European Court in which it explicitly stated that the right to respect for private live (Article 8 ECHR) implies positive obligations of the State to protect individuals belonging to ethnic minorities against negative stereotyping.

Surprisingly, the Court did not reach this result by expanding its recently developed doctrine “that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life” (ECtHR 7 February 2012 Axel Springer AG v. Germany (no. 39954/08), § 83. Compare the line of cases from ECtHR 30 March 2004, Radio France v. France (53984/00), § 31; ECtHR 29 June 2004, Chauvy v. France (64915/01), § 70 via ECtHR 15 November 2007, Pfeifer v. Austria (12556/03), § 35 to more recent cases like ECtHR 18 January 2011, Mikolajová v. Slovakia (4479/03) and ECtHR 10 May 2011, Sipoş v. Romania (26125/04)). Instead, the reasoning of the Court in Aksu just succinctly emphasized that “an individual’s ethnic identity must be regarded as another such element” of a person’s physical and social identity that is embraced by the notion of ‘private life’ (§ 58) and that “any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group.”(§ 59)

However that may be, the judgment makes clear that an individual who complains that the State has not done enough to protect him or her against racial insults, ethnic stereotyping, and racial defamation should in principle be considered a victim within the meaning of Article 34 of the Convention (§ 53-54). Whether he/she will get a judgment in his/her favor will above all depend on the weight that the Court will give “to the public interest in protecting freedom of expression” (§ 63). A remarkable development indeed.

Conference on Ternovszky Judgment

On 31 May and 1 June the Hague University of Applied Sciences and Bynkershoek Institute's Research Center for Reproductive Rights are organising a conference on the consequences of the European Court's judgment in Ternovzsky v. Hungary on the right to give birth at home. The conference, entitled "human rights in childbirth", is in the organisers' words about the following:

What are the Rights and Responsibilities of Birthing Women?

Who decides how a baby is born? Who chooses where a birth takes place? Who bears the ultimate responsibility for a birth and its outcome? What are the legal rights of birthing women? What are the responsibilities of doctors, midwives and other caregivers in childbirth? What are the rights and interests of the unborn, and how are they protected?

This international conference will convene for discussion and clarity on the scope of birthing women's human rights to authority, support and choice in childbirth. In December, 2010, the European Court of Human Rights issued the first holding of a high human rights tribunal addressing the legal authority of birthing women as a human rights issue. In Ternovszky v. Hungary, the ECHR addressed the criminal prosecution of midwives in Hungary for supporting out-of-hospital births. The ECHR stated that the human right to privacy encompasses,

"inter alia, aspects of an individual's physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world [cite omitted], and it incorporates the right to respect for both the decisions to become and not to become a parent [cite omitted]. The notion of a freedom implies some measure of choice as to its exercise. The notion of personal autonomy is a fundamental principle underlying the interpretation of the guarantees of Article 8 [cite omitted]. Therefore the right concerning the decision to become a parent includes the right of choosing the circumstances of becoming a parent. The Court is satisfied that the circumstances of giving birth incontestably form part of one's private life for the purposes of this provision; and the [Hungarian] Government did not contest this issue." (Ternovszky v. Hungary, no. 67545/09, 14 December 2010)

Registration to the conference can be done through this link.

NGO Letter and Comments on Brighton Reform Proposals

A group of leading human rights NGOs is calling for more transparency and civil society involvement in the Court's reform process. The group, consisting of Amnesty International, the AIRE Centre, the European Human Rights Advocacy Centre (EHRAC), Human Rights Watch, INTERIGHTS, the International Commission of Jurists (ICJ), JUSTICE and REDRESS, has addressed an open letter on this issue to the member states of the Council of Europe. Unlike what happened with the first draft, which was leaked to the media two weeks ago, the NGOs call for a more open and inclusive process in which new drafts are made public in a timely way in order to allow for civil society input.

The coalition of NGOs, which was earlier involved in galvanising civil society during the Interlaken process, also issued joint preliminary comments on the leaked Brighton draft. The core of the comments reflect the criticism that I have voiced on this blog earlier and which is also shared by the group of other NGOs on which I posted yesterday:

"Against this background we are deeply concerned that some measures at the heart of this Draft have the potential to marginalise and undermine the functioning of the Court without the evidence having been produced to establish that such radical change is needed and with little recognition of the damage they could do to the Convention system in the long-term. ... We are particularly concerned at two aspects of the draft Declaration:

· The proposal to incorporate the principle of subsidiarity and the doctrine of the margin of appreciation – broadly defined – into the text of the Convention.
· The proposals to amend the admissibility criteria."

To be continued!

NGO Statement on European Court Reforms

The Open Society Justice Initiative has put a joint statement of a large number of NGOs online. The text reflects the concerns about the current reforms process of the ECHR. Amongst others it warns against greater latitude for governments to avoid their human rights obligations and it argues for an evaluation of the effects of the recent Protocol 14 reforms and the Court's own internally reformed working methods, before adding reform to reform to reform ... Individuals can also sign up to the petition, as for example Emma Bonino, Olivier de Schutter and Bill Bowring have done.

The Justice Initiative has also put five factsheets on the reform debates on their website. The issues addresse in these sheets are the following:

1. Summary of Brighton Declaration Draft. A summary of the proposed text advanced by the British government which currently holds the chairmanship of the Council of Ministers of the Council of Europe.

2. Protocol 14: How It Works. Introduced in June 2010, this amendment to the European Convention of Human Rights contained measures aimed at improving the court's ability to manage its caseload.

3. Protocol 14: De Minimis. A look at steps being implemented under the latest reforms to prevent trivial cases from taking up court time.

4. Pilot Judgments. By ensuring that a single "pilot" judgment is properly implemented, the court is seeking to resolves similar, repetitive complaints from other applicants.

5. The "Filtering" Debate. The court set up a filtering unit in 2011 to weed out inadmissible applications from Russia, Turkey, Romania, Ukraine and Poland, but there are concerns that further filtering could obstruct substantive applications.

Article on Margin of Appreciation by Judge Spielmann

Judge Dean Spielman, one of the section presidents at the European Court of Human Rights, has written a working paper in the series of the Centre for European Legal Studies of the University of Cambridge. It deals with the issue of the margin of appreciation, more topical than ever in the context of the upcoming Brighton conference about the European Court. The paper is entitled 'Allowing the Right Margin. The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?'. This is the abstract:

The doctrine of the national margin of appreciation is well established in the case-law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute.

The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case-law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or “reverse” margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No. 14, now ratified by all Council of Europe member States, enshrines in Article 12 – at least to some extent – an obligation to apply a margin of appreciation.

One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

Liber Amicorum Peter Leuprecht

A Liber Amicorum in honour of Peter Leuprecht, one of the grand old men of the Council of Europe, has been published with Bruylant (featuring his trademark bow tie on the cover). During his long career he was, amongst many other positions, director of the human rights division within the Council of Europe and deputy Secretary General. The book, edited by Olivier Delas and Michaela Leuprecht, includes a number of contributions on the European Court of Human Rights. The full table of contents can be found here.

New ECHR Factsheets

A number of new or updated factsheets about the case-law of the European Court of Human Rights have been released in the past two months by the Registry of the Court. These relate to the following themes:

* European Union
* Collective expulsions
* Data protection
* Detention conditions and treatment of prisoners
* Environment
* Expulsions and extraditions
* Extra-territorial jurisdiction
* Forced labour and trafficking
* Gender identity
* Hate Speech
* Health
* Sexual orientation
* Terrorism
* Trade union rights
* Violence against women