New Belgian Judge Elected

Yesterday, the Parliamentary Assemble of the Council of Europe elected the new European Court of Human Rights judge in respect of Belgium. From the three candidates, Paul Lemmens received a majority of votes cast (85 out of 158). Of the three candidates (see their CV's here) Lemmens, who is a professor at the Human Rights Centre of Leuven University, is the one with the most extensive ECHR expertise. Apart from being an academic who has written a lot on the ECHR and human rights more generally, Lemmens also has practical experience, foremost as a member of the Belgian Council of State and a member of the Human Rights Advisory Panel in Kosovo (one of the only areas currently falling outside of the geographical scope of the ECHR). He has litigated at the European Court both on behalf of applicants and on behalf of the government. Finally, he has been an ad hoc judge in four cases before the European Court. He thus seems to be very qualified (which I can also attest from various academic conferences which I attended in which he participated in nuanced and thoughtful ways).

As to a remarkable point in the procedure, on which I reported earlier, the following can be added. In the letter presenting the three candidates, the Belgian government stated the following about the fact that the list of candidates included men only:

However, since the current list does not contain a female candidate, we are aware that is admissible only by way of an exception, having regard to the special circumstance of the case. It should be noted in this connection that the State not only made a public call for candidatures widely published in the Official Gazette and the special-interest press and open for a month, but also required all candidates who responded to undergo an interview without short-listing on the basis of the CV. Lastly, at the interview, under arrangements available for your consultation, steps were taken to have the qualifications and experience of all candidates of both sexes assessed in such a way that their applications could be considered on equal terms.

It emerged from the interview that the sole female candidate to come forward did indeed meet the requirements of competence stipulated by Article 21, paragraph 1, of the Convention, but like other candidates also meeting the requirement of competence, could be classed as not possessing equivalent competence to the three candidates mentioned above.

Paul Lemmens was elected for a term of office of nine years, starting on 12 September 2012. I wish him wisdom in the fulfillment of his new capacity. Congratulations, professor Lemmens!

Academic Report on UK and ECHR

Finally, a thorough academic perspective in the British debate on the ECHR has been published. A new Equality and Human Rights Commission research report (no. 83) was written by a team of three researchers of London Metropolitan University: Alice Donald, Jane Gordon, and Philip Leach. It is entitled 'The UK and the European Court of Human Rights'. These are some key points from the report according to the authors:

Brighton Outcomes

The Brighton Declaration is finally there. It was adopted last Friday in the English seaside resort where ministers of the 47 state parties to the European Convention on Human Rights came together to discuss reforming the Court. As I predicted last week, the final text is much less invasive on the Court's prerogatives than was to be feared after seeing the initial UK Government's plans for reform. Here are some of the main points:

* It is proposed to amend the Convention to change the application deadline after exhausting domestic remedies from 6 to 4 monts (not to 2 or 3 as had also been proposed).

* On other admissibility issues, the final text much more strongly protects the Court's independent decision-making on this. The Court is called upon to do so "strictly and consistently". However, the Court will not be barred through a change of the ECHR from considering complaints which have been duly considered by national courts already. The are some admonishing sections in the text, but in the end the final say remains with the Court itself.

* On the margin of appreciation and subsidiarity: it is no longer proposed to put these in the operative part of the Convention, but rather now in the preamble: "for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the Preamble to the Convention". As remarked by many people,it is very unclear what difference this would make. One might especially ask how it adds to "transparency" - the part of the Brighton text quoted here is itself not very transparent. The concept of the margin of appreciation is, as Court President Bratza remarked in Brighton, "a variable notion which is not susceptible of precise definition." Will making the concept explicit in the Convention text truly affect case-law in practice? I sincerely doubt it will. Also, how will adding the two concepts to the Preamble make them more accessible?

* the Committee of Ministers is asked to draft an optional protocol on the possibility for the Court to deliver advisory opinions to national courts on the interpretation of the Convention in the context of specific cases. A short sentence at the end of the part of the Declaration about this indicates that there are continuing doubts at least among some of the state parties about the usefulness of this "further invites the Committee of Ministers thereafter to decide whether to adopt it."

* the possibility for adding additional judges to the Court, potentially with a different term of office and/or a different function than existing judges. The Committee of Ministers will further study this possibility. Should we expect this to be mainly judges with an application sifting function, akin - one is almost afraid to mention it - to the European Commission on Human Rights, abolished in 1998 under Protocol 11 ECHR? The Brighton Declaration also proposes to replace the current age limit of judges of 70 by a provision which would require judges not to be older than 65 at the start of their mandate as a judge. This in effect raises the maximum age to 74 - a good reflection of Europe's ageing population?

* As in all plans and declarations of recent years, much emphasis is put on implementation of the Convention at the national level. In this respect it is interesting that the Declaration points to a relative new player which can be key in this regard: it calls on states to consider "the establishment, if they have not already done so, of an independent National Human Rights Institution." Also, states are encouraged to use technical assistance of other countries (in contrast to earlier versions states will not be required to make use of this, even in cases of structural violations).

Textual proposals by the Committee of Ministers for all changes should be ready at the end of 2013. A protocol 15 is in the making (and potentially 16, if the provisions on an advisory opinion opt-in will be put in a spearate protocol). Let's hope that its fate will be to spend less time in the waiting room than Protocol 14 did.

One of the main reasons for the Brighton conference (and its predecessors Interlaken and Izmir) is the caseload problem in Strasbourg. On that front the newest numbers seem to be slightly encouraging (although the problem ios not off the table for the years to come). Court President Bratza indicated in Brighton that there has been an increase of a staggering 98% in cases decided since last summer and a significant (no precise numbers mentioned there) decrease of pending applications since then. In addition the number of cases coming to Strasbourg is also lower. Bratza warned, however that these trends should not "lull us into a false sense of security, into a feeling that no further action is needed to help the Court." At Brighton, the Council of Europe's Secretary General, Jagland, called for the setting up of a fund of voluntary contributions to help the Court deal with the backlog.

As the President of the Parliamentary Assembly of the Council of Europe, Jean-Claude Mignon, argued in the Guardian newspaper last Thursday, the Court was never meant to replace natinoal systems - the real solutions for tackling both human rights problems and the Court's caseload are to be found at the national level. The speeches at Brighton of Mignon, but also of the Secretary-General of the Council of Europe and of the President of the Court, can be found here.

Other very good and analytical comments on the outcoems of Brighton have been written on the UK Human Rights Blog by Noreen O'Meara (Brighton rocked! Next steps for reforming the European Court of Human Rights) and Ed Bates (The Brighton Declaration and the “meddling court”). The first reactions from NGOs are also beginning to come out. The Open Society Justice Initiative, for example reacts with relief that some ideas to limit access to the Court do not feature in the Brighton Declaration but expresses its concern over the proposed 4 months application deadline and other issues. Amnesty International expresses concern over the fact that Brighton tampers with the Court's own judicial role rather than addressing more intensely the problems of implementation within state parties to the Convention.

Brighton Has Started

Today, the formal part of the Brighton conference has started. The final declaration is due to be adopted tomorrow. After all the months of preparations, the at times scathing attacks on the Court and the not always very nuanced discussions, it now seems that the strong counter-lobby of many states, NGOs and national human rights institutions has led the UK chairmanship of the Council of Europe to backtrack on many parts of their proposals. Still, the Cameron government will want and need something to shows to their constituencies after they upped the stakes so much over the past months, so we will see what the final declaration will offer. In the meantime, the last version that is available online of the draft declaration dates from a week ago (12 April) and can be found here. As the changes in that document show, most of the sharp edges of the earlier drafts have been polished off. Subsidiarity and the margin of appreciation are still mentioned to be included in the Convention, but only in the Preamble, not in the operative parts. Also, the criterion of having to declare applications inadmissible which have already been duly considered by national courts is no longer proposed to be formally included in the Convention text, rather it seems now just to be something the state parties ask the Court to do (with the Court being the final arbiter in making that decision). The proposed time limit to lodge complaints is four months (instead of the current six in the current system). Let's see what tomorrow brings!

René Cassin ECHR Moot Court

As has now become a good tradition, the René Cassin competition will take place again this year in Strasbourg. The competition is a french-language European Convention on Human Rights moot court for university students, named after the second president of the European Court. This the key information about the competition:

The 27th René Cassin human rights advocacy competition, consisting of mock legal proceedings in French based on the European Convention on Human Rights and open to students of law and political science, will be held on 23 and 24 April 2012. Sixteen university teams from six countries (France, Germany, Hungary, Romania, Slovenia and Switzerland), selected following the written stage of the competition, will compete at the European Court of Human Rights in Strasbourg in a case concerning the rights of asylum seekers. The mock courts in the semi-finals will be made up of academics, judges, lawyers and officials from the Registry of the European Court of Human Rights.

The two most successful teams will meet in the final, to be held in the Court’s hearing room on 24 April at 2 p.m., before a panel of prominent figures (including judges of the Court and academics) chaired by Mr Philippe Leclerc, Representative for France of the United Nations High Commissioner for Refugees.

Further information about this year’s competition and previous contests can be found on the René Cassin competition Internet site and on the page of the Court’s website dedicated to the competition. Those wishing to attend the final on 24 April should register no later than 19 April using the online form available on this page.

Brighton

As negotiations and preparations are ongoing for the meeting of Ministers later this week on ECHR reform in Brighton, here are a few updates:

* A new joint NGO Statement on Brighton

* An academic initiative of the University of Sussex calling for wider support for the European Court of Human Rights.

* Strasbourg - A reckoning : an open page by the Guardian newspaper to counter all the nonsense written by some of the British Press. The page invites readers to indicate important judgments to show what Strasbourg really does.

* A post by Open Society Justice Inititative director James Goldston expressing concern about the fact that civil society is largely excluded from the debates running up to and during the Brighton conference.

* An article in the Independent newspaper about calls on the UK government to confront Russia on its failure to effectively comply with European Court of Human Rights judgments.

Brighton Conference Programme Online

The programme for next week's Brighton conference on the European Court of Human Rights has been put online by the British chairmanship of the Council of Europe. It can be found here. Unfortunately, it says nothing much, certainly not about what precise issues will be addressed during the conference. Considering that each delegation will only have three minutes speaking time in the plenary, remaining issues to be negotiated will have to be done in the corridors and bilateral conference rooms ...

Inter-State Case Georgia v Russia goes to Grand Chamber

Last week, the Chamber which had been assigned to adjudicate on the Georgia v Russia (No. 2) inter-state complaint - about the war of 2008 - relinquished jurisdiction in favour of the Grand Chamber of the European Court.

Earlier, in December 2011 the Chamber had already declared the case admissible (mainly by joining most admissibility issues to the merits, to be decided on later). A hearing had also already been held in September of that year. Of course, formally such a relinquishment to the Grand chamber can happen at any time in the proceedings as Article 30 ECHR indicates:

Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.

However, one may wonder why it happens at this stage. If the Grand Chamber is more suited to deal with the case, it would have made more sense to relinquish jurisdiction before hearings took place, since now a different group of judges will have to assess the facts and the law. Could it be that the case does after all raise serious questions of interpretation or are rather serious questions of political sensitivity at stake, for which a Grand Chamber judgment might be a more suitable vehicle, considering its greater weight and importance? One consideration might be that this means that the judgment cannot be challenged later on, since the Grand Chamber is the last port of call in the Strasbourg system. In any event, the case of high importance has now been dragging on for over 3.5 years, certainly not a record yet, but now that the Grand Chamber will take over more patience will be needed before a final judgment is rendered.

Brighton Update - New Version of the Draft Declaration

A lot has been written on the preparations for the Brighton conference on the ECHR. The newest version of the Draft Brighton Declaration was discussed yesterday in Strasbourg. I have not been able to track an online version of this newest draft, but apart from a number of points which have been left out (no consensus on those?), it is striking that the state parties still envisage to include the margin of appreciation explicitly in the ECHR. Secondly, the most debated admissibility criterion change is still in, but in a slightly different way:

"Concludes that Article 35 of the Convention should further be amended to make clear that an application is manifestly ill-founded within the meaning of Article 35(3)(a), inter alia, to the extent that the Court is satisfied that the application raises a complaint that has been duly considered by a national court applying the Convention in light of the well-established case law of the Court, unless the application raises a serious question affecting the interpretation or application of the Convention; and invites the Committee of Ministers to adopt the necessary amending instrument by the end of 2013."

The old draft read as follows:

"Concludes that Article 35 of the Convention should further be amended to make clear that an application is inadmissible if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention, unless the Court considers that:
i) The national court clearly erred in its interpretation or application of the Convention rights; or
ii) The application raises a serious question affecting the interpretation or application of the Convention."

Finally, what in the last draft were still several options about the time limit within which to lodge complaints with the Court (two, three or four months) has now been changed into four months (as opposed to the current six).

ECHR Articles

Thanks to our documentalists here at the Netherlands Institute of Human Rights (SIM) I found a range of ECHR articles which I think I had not mentioned earlier. One is a special issue of the Northern Ireland Legal Quarterly (2010, vol. 61, no. 3) dedicated to positive obligations, which included the following articles:

* C. Donnelly, 'Positive obligations and privatisation', pp. 209-224.
* E. Palmer, 'Beyond arbitrary interference: the right to a home? Developing socio-economic duties in the European Convention on Human Rights' pp. 225-244.
* U. Kinkelly, 'Protecting children's rights under the ECHR: the role of positive obligations', pp. 245-262.
* R. O'Connell, 'Realising political equality: the European Court of Human Rights and positive obligations in a democracy' pp. 263-280.
* D. Russell, Supplementing the European Convention on Human Rights: legislating for positive obligations, pp. 281-294.

And then two more recent articles from other journals:

* F. Fabbrini, 'The European Court of Human Rights, the EU Charter of Fundamental Rights, and the right to abortion: Roe v. Wade on the other side of the Atlantic?', Columbia Journal of European Law, vol. 18, no. 1 (2011/12) pp. 1-54.

* M. Fyrnys, 'Expanding competences by judicial lawmaking: the pilot judgment procedure of the European Court of Human Rights', German Law Journal, vol. 12, no. 5 (2011), pp. 1231-1260.