New Handbook on ECHR in French

Professor Laurence Burgorgue-Larsen of Paris-I (Sorbonne) University has just published a new French-language handbook on the European Convention on Human Rights. Entitled 'La Convention européenne des droits  de l’homme', it has been published by Lextenso Éditions. Burgorgue-Larsen is an expert in both Inter-American and European human rights jurisprudence. This is the book's abstract:

Cet ouvrage a pour ambition de proposer une synthèse des grandes lignes jurisprudentielles dégagées par la Cour européenne des droits de l’homme concernant chaque droit garanti, y compris ceux consacrés par les protocoles dits « matériels ». Après une introduction qui entend présenter tant la naissance et l’évolution du système conventionnel que les défis importants auxquels il est confronté, plus de cinquante ans de jurisprudence sont analysés à la fois de façon concise et effective. Cet ouvrage s’adresse tant aux étudiants qu’aux praticiens de l’univers judiciaire en contact permanent, de nos jours, avec la logique induite par la protection des droits de l’homme.


Le livre a été conçu afin de faciliter son maniement en tant qu’outil de travail : outre une bibliographie générale – présentant les études « classiques » sur la Convention en anglais, français, espagnol et italien – chaque commentaire des droits consacrés à l’échelle conventionnelle est assorti d’une bibliographie spécialisée afin de permettre d’éventuels approfondissements de la part des lecteurs. De même, il a été décidé de renvoyer les index directement aux commentaires des articles de la Convention européenne. Il s’agit d’un moyen supplémentaire pour le lecteur d’identifier, rapidement, les liens entre un thème (index thématique) et un arrêt (index jurisprudentiel) avec un droit précis. L’ensemble est à jour au mois de septembre 2012.

As this summary indicates, it is a good starting point for research, as it offers both general literature references and specialised ones per Convention article in a number of languages.

HUDOC Advanced Search Tutorial

The Court has just put online a short video tutorial on the advanced search options of the recently renewed HUDOC case-law database. It explains in much more detail than the basic earlier video how one can search through the extensive jurisprudence of the Court (and the former Commission to a certain extent). Here it is:

New ECHR Protocols and Structural National Problems

A few weeks ago, at the end of October, the Committee of experts on the Reform of the Court (DH-GDR), met again to further discuss future Protocols 15 and 16 to the Convention (see my earlier reporting here). The report of this most recent meeting

All of these drafts will now be discussed by the Steering Committee for Human Rights (CDDH) at the end of November. The documents relating to the Committee's work can be perused here (and here in French). This website also includes reports of the meetings which give some insights into which points were discussed in the negotiations. An example is that the Commissioner for Human Rights will be given the right to participate in advisory opinion proceedings (in the new Protocol 16). It also set up a drafting group "C" (on the practice of interim measures and on the possibility of creating a "representative application procedure"- an additional way of dealing with large numbers of situations relating to the same human rights issue in a certain country, akin to class actions and collective complaints) and designated an expert consultant, Mr Martin Eaton, to prepare a draft toolkit to inform national public officials about state obligations under the ECHR.

The texts discussed at the meeting were:

• Draft CDDH report on measures taken by the member States to implement relevant parts of the Interlaken and Izmir Declarations
• Draft CDDH report containing elements to contribute to the evaluation of the effects of Protocol No. 14 to the Convention and the implementation of the Interlaken and Izmir Declarations on the Court’s situation
• Draft Protocol No. 15 to the Convention
• Draft explanatory report to Protocol No. 15
• Draft Protocol No. 16 to the Convention
• Draft Explanatory report to Protocol No. 16

In a separate process, the Legal Affairs Committee of the Parliamentary Assembly approved a report this Monday, entitled 'Ensuring the viability of the Strasbourg Court: structural deficiencies in States Parties'. Written by rapporteur Serhii Kivalov from Ukraine, the report focuses on what national authorities could and should do to counter and prevent structural and systemic human rights violations. This would enable the Court to be less burdened with repetitive applications. The last pages of the reprot also give a handy overview of all the pilot judgments so far. The report indicates that nine states face the most structural problems: Bulgaria, Greece, Italy, the Republic of Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine.

Article on Extraterritoriality of the ECHR

Professor Samantha Besson (University of Fribourg) has published the article 'The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to' in the newest issue of the Leiden Journal of International Law (vol. 25, issue 4, 2012). This is the abstract:

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

ECHR Articles in the Modern Law Review

The newest issue of the Modern Law Review (vol. 75, issue 6)  includes two articles on the European Convention of Human Rights. The first is an article written by Ian Leigh and Rex Ahdar entitled 'Post-Secularism and the European Court of Human Rights: Or How God Never Really Went Away'. This is the abstract:

This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils‘ religious freedom nor the proselytising or coercive effect of the 'passive‘ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion-state frameworks into a strict American-style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.

The second is a case commentary written by Paul Johnson entitled 'Adoption, Homosexuality and the European Convention on Human Rights: Gas and Dubois v France'. This is the abstract:

On 15 March 2012 the European Court of Human Rights (the Court) issued its first judgment addressing the differential treatment of same-sex and opposite-sex couples in respect of the adoption of a child. The Court held that excluding same-sex couples in civil partnerships, who have no legal right to marry, from adoption provisions available to married opposite-sex couples does not violate rights guaranteed by the European Convention on Human Rights (the Convention). I argue that the Court's reasoning in Gas and Dubois v France is unpersuasive and unsustainable in light of its wider case law.

New Publications on the ECHR

At the start of the month, again a short selection of articles published in various journals or online, with the Convention or Court as their subject-matter. First off, the Indiana International and Comparative Law Review includes an article by J. Heider entitled 'Unveiling the truth behind the French burqa ban: the unwarranted restriction of the right to freedom of religion and the European Court of Human Rights' in vol. 22,  no. 1 (2012) pp. 93-130.

In addition, the website of the Italian Society of International Law, on its forum page includes three articles about the ECHR. Two of them relate to the EU's accession to the European Convention:

• Benedetto Conforti, 'L’adhésion de l’Union Européenne à la Convention Européenne des Droits de l’Homme' (in French)
• Simone Vezzani, 'L’Unione europea e i suoi Stati membri davanti ai giudici di Strasburgo: una valutazione critica del meccanismo del co-respondent' (In Italian, on the co-respondent procedure)

And one is a comment on the Costa and Pavan v. Italy judgment of this summer:

• Vladimiro Zagrebelsky, 'La irragionevolezza della legge italiana sulla procreazione assistita nel giudizio della Corte' (in Italian)
  
  

Open Society Paper on ECHR Implementation

The Open Society Justice Initiative has drafted a paper as a kind of counterweight to all the plans and initiatives from the ECHR state parties and those from within the Council of Europe itself. The paper, entitled 'National Implementation of the Interlaken Declaration. Perspectives of European civil society on national implementation of the Interlaken Declaration and Action Plan: Czech Republic, Hungary, Italy, Poland, Republic of Moldova, Russian Federation and Ukraine' has been formally submitted to the Council of Europe's Steering Committee on Human Rights and will thus become part of the discussions. It includes a large number of practical recommendations, from a civil society perspective to improve the effective implementation of European Court judgments. One of its very useful features is an analysis of implementation problems in some of the most problematic state parties. Hopefully a way to make a difference where it is needed most. Here are some excerpts from the press release:

The 47 members of the Council of Europe have pledged to improve their implementation of the rulings of the European Court of Human Rights (ECHR), something that would significantly reduce the case load that continues to weigh on the Court. After April's Brighton Conference on the future of the Court, the Justice Initiative urged member states to pursue three principle objectives: implementing the European Convention at a national level, complying with judgments of the court, and providing adequate resources for previously agreed reforms.


National governments have presented their assessments of their own progress in this area, but without any significant input from the civil society groups and human rights lawyers who have resorted to the court to address abuses of the European Convention on Human Rights. This paper reflects civil society perspectives on national implementation in seven countries in which the Open Society Justice Initiative works closely with local partners, and in which the lack of implementation in crucial areas severely and negatively affects the promotion and protection of human rights: the Czech Republic, Hungary, Italy, Moldova, Poland, Russia, and Ukraine.

The Open Society Justice Initiative will hold consultations around the bi-annual meeting of NGOs at the European Court of Human rights in November 2012 to discuss how to improve supervision of the enforcement of ECHR judgments.

Video in German about the Court

Das Erste, one of Germany's main national public broadcasters has produced a short video about the European Court of Human Rights. The short feature (just a bit over seven minutes) in the series Ratgeber - Recht gives a short overview of what the Court is and does. It is entitled 'Die letzte Hoffnung? Der Europäische Gerichtshof für Menschenrechte' (The Last Hope? The European Court of Human Rights).

New Journal with ECHR-related Articles

A brand new journal has been added to the universe of human rights periodicals: the Cyprus Human Rights Law Review. The new review, led by Leto Cariolou, of the European Human Rights Law Institute, aims to promote:

knowledge, appreciation and constructive discussion on matters of human rights law and policy, particularly those affecting the Cypriot legal order. The Review publishes articles and case notes that consider human rights from an international to domestic context, book reviews, analysis of recent jurisprudence and practice of international and regional human rights systems and analysis of recent and relevant jurisprudence and practice of Cypriot courts and other domestic authorities.

The majority of articles in the first issue relate to the European Convention of Human Rights. I mention those here:

• Dean Spielmann, Recognition and Execution of foreign judgments and the European Convention on Human Rights
• Panayotis Voyatzis, The right to legal assistance free of charge in the case-law of the European Court of Human Rights
• Loukis G. Loucaides, The right to Freedom of Thought as protected by the European Convention on Human Rights  
• Natasha Bakirci, Al-Skeini and others v. the United Kingdom
• Daniel Rietiker, Neulinger and Shuruk v. Switzerland
• Theodora Christodoulidou, Kafkaris (no.2) v. Cyprus

Congrats to the editors of this new review!

Liber Amicorum for Bratza on Freedom of Expression

This week a special collection of essays was offered to the Court's president to mark the end of his many years in Strasbourg, first in the European Commission of Human Rights and later at the Court, since its fulltime start in 1998. Contrary to a usual Liber Amicorum, this one has all essays tightly organised around a specific theme, which makes it all the more interesting. The book was edited by Josep Casadevall, Egbert Myjer, Michael O'Boyle and Anna Austin and is entitled 'Freedom of Expression. Essays in honour of Nicolas Bratza'. It was published by Wolf Legal Publishers in cooperation with the Council of Europe. The beautiful tribute to one of Strasbourg's most experienced figures (decades ago already, Bratza was one of the counsels for the government in the famous Handyside case) includes a wide variety of perspectives on the central theme: freedom of the press and privacy, responsible journalism, freedom of expression of judges, lawyers, witnesses and civil servants, offensive speech and much more. This is the abstract:

Freedom of expression is one of the cornerstones of all democratic systems. Without it ideas about how to protect the common good in our societies would be impoverished. A marketplace of ideas is essential for democracy to thrive. It is for this reason that the European Court of Human Rights attaches such importance to political discourse as well as to speech and other forms of expression that may shock and offend. Yet such freedom may clash with other rights such as the right to privacy, the right to a good reputation. It may even conflict with the need to protect public order or morals. Societies require pluralism if they are to grow yet democracy also seeks to limit extreme forms of speech that preach hate and advocate violence. But are such restrictions on free speech legitimate and by what criteria are we to judge their necessity?


We rely on journalists to report accurately the controversies of the day and protect their right not to reveal sources. They also enjoy a broad right of fair comment. But we expect them to be responsible in their factual reporting, to check their sources and to have regard to the need to observe some degree of restraint when reporting or commenting on matters that affect the rights of others. But is it legitimate to interfere with reporting that is in the public interest and how can the law promote responsible journalism?

This collection of essays on freedom of expression contains contributions by distinguished judges and lawyers from many varied backgrounds that explore these themes with a critical eye. The book seeks to honour Sir Nicolas Bratza, President of the European Court of Human Rights, for his outstanding contribution, as a jurist and leading judicial figure, to the protection of human rights in Europe.

I can add that the book also includes one of the most original footnotes I ever saw: on page 363 it features part of the musical score of Edward Elgar's Enigma Variations!