New Book on Pilot Judgment Procedure

A new book on the Court's pilot judgment procedure has been published by Martinus Nijhoff Publishers. It is entitled 'The Pilot-Judgment Procedure of the European Court of Human Rights' and was written by Dominik Haider of the University of Vienna. This is the abstract of the book:

Structural human rights deficiencies in the member states of the European Convention of Human Rights have caused numerous individual applications to the European Court of Human Rights and are a considerable factor in the Court's persistent overload crisis. The Pilot-Judgment Procedure was devised to tackle these structural deficiencies and has become an important instrument of the Court.

Dominik Haider examines to which extent the Pilot-Judgment Procedure is reconcilable with the European Convention on Human Rights. After an analysis of the member states’ obligations to resolve structural deficiencies, the author asks if the European Court of Human Rights is empowered to take the procedural steps which are characteristic of the Pilot-Judgment Procedure. In particular, the Court's express orders are critically scrutinised.  

For more on pilot judgments, see also my own previous writings here and the book by Leach and others here.

New ECHR Academic Articles

The newest update of human rights "current contents" (June 2013), from a very wide range of academic sources, has been put online by our SIM documentation team. The articles specifically related to the European Convention and the European Court include:  

* F. Dorssemont, 'The right to form and to join trade unions for the protection of his interests under Article 11 ECHR: an attempt "to digest" the case law (1975-2009) of the European Court on Human Rights', Fordham International Law Journal, vol. 36, no. 2 (2013), pp. 185-235.

* B. de Wilde, 'A fundamental review of the ECHR right to examine witnesses in criminal cases', International Journal of Evidence and Proof, vol. 17, no. 2 (2013), pp. 157-182.

* J. Gerards, 'How to improve the necessity test of the European Court of Human Rights', International Journal of Constitutional Law, vol. 11, no. 2 (2013), pp. 466- 490.

 

* E. Ireland, 'Do not abort the mission: an analysis of the European Court of Human Rights case of R.R. v. Poland', North Carolina journal of international law and commercial regulation, vol. 38, no. 2, (2012/13), pp. 651-696.

 

* M. Rhinehart, 'Abortions in Ireland: reconciling a history of restrictive abortion practices with the European Court of Human Rights' ruling in A., B. & C. v. Ireland', Penn State Law Review, vol. 117, no. 3 (2012/13), pp. 959-978.

 

The American University International Law Review includes two ECHR-related articles in its volume 28 (2012/13), issues 2 and 3 respectively:

* E. Raulston, '(Un)justifiable? A comparison of electoral discrimination jurisprudence at the European Court of Human Rights and the Constitutional Court of Bosnia and Herzegovina', pp. 669-706.

* E. Lang, 'A disproportionate response: Scoppola v. Italy (no. 3) and criminal disenfranchisement in the European Court of Human Rights', pp. 835-872.

Finally, the European Human Rights Law Review in its issue no. 3 (2013) features:

* J. Costa, 'The relationship between the European Court of Human Rights and the national courts', pp. 264-274.

* R. Ó Fathaigh, 'Article 10 and the chilling effect principle', pp. 304-313.

Article on Environmental Litigation at the ECtHR

Riccardo Pavoni of the University of Siena has posted a paper on SSRN entitled 'Public Interest Environmental Litigation and the European Court of Human Rights: No Love at First Sight'. The paper will be published later on in: F. Lenzerini & A.F. Vrdoljak eds., International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature. This is the abstract:

This paper considers the doctrines and principles that are available to the ECtHR in order to dismiss in limine those environmental claims that are regarded as brought in the name of the public interest or common good as such. Such principles emerge, in particular, from the victim requirement and associated prohibition of actio popularis under the ECHR system and from the tests of applicability of ECHR provisions as developed in the Court’s jurisprudence. The analysis focuses on the Court’s environmental decisions relating to the right to private life under Article 8 ECHR and the right to a fair trial under Article 6 ECHR. These are indeed the provisions which have generated the largest body of environmental jurisprudence and which provide the most interesting insights into the past, present and future of ECHR environmental litigation with a public interest/collective dimension.

Moreover, the study addresses the ECtHR jurisprudence relating to the standing of NGOs, as well as the purpose and scope of procedural environmental rights under the ECHR according to certain innovative, recent decisions of the Court. With a view to showing that the absolute inadmissibility of public interest environmental litigation under the ECHR system is largely a false myth, the paper draws attention to various environmental cases adjudicated by the ECtHR and denoted by a collective dimension, especially given the large number of individuals affected by the alleged ECHR violations and the breadth of the geographical area in question. Such cases show that individualized justice in environmental disputes is somehow fictitious, ie, suggested by the specific requirements of European human rights litigation, but out of tune with the nature of most environmental problems.

Article on Margin of Appreciation and Environmental Law

The newest issue of Global Constitutionalism (Vol. 2, Issue 2, July 2013) includes an article on the margin of appreciation and environmental law. The article, by Chris Hilson of the University of Reading, is entitled 'The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action'. This is the abstract:

Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.

New Book on European Court Criticisms

Spyridon Flogaitis, Tom Zwart, and Julie Fraser have edited the book 'The European Court Of Human Rights And Its Discontents. Turning Criticism into Strength' which has just been publsihed with Edward Elgar Publishing. This is the abstract:

The European Court of Human Rights has long been part of the most advanced human rights regime in the world. However, the Court has increasingly drawn criticism, with questions raised about its legitimacy and backlog of cases. This book for the first time brings together the critics of the Court and its proponents to debate these issues. The result is a collection which reflects balanced perspectives on the Court’s successes and challenges.

Judges, academics and policymakers engage constructively with the Court’s criticism, developing novel pathways and strategies for the Court to adopt to increase its legitimacy, to amend procedures to reduce the backlog of applications, to improve dialogue with national authorities and courts, and to ensure compliance by member States. The solutions presented seek to ensure the Court’s relevance and impact into the future and to promote the effective protection of human rights across Europe.

Containing a dynamic mix of high-profile contributors from across Council of Europe member States, this book will appeal to human rights professionals, European policymakers and politicians, law and politics academics and students as well as human rights NGOs.

These are the contributors: L. Bojin, M. Bossuyt, A. Bradley, A. Burkov, N. Bürli, D. Davis, K. Dzehtsiarou, J. Fraser, J. Gerards, B. Kerr, P. Mahoney, E. Myjer, I. Opstelten, A. Sajó, A. Terlouw, W. Thomassen, L. Wildhaber, T. Zwart.

Liber Amicorum Vincent Berger

To honour one of the most experienced lawyers at the heart of the Strasbourg system, Vincent Berger (the retiring jurisconsult of the Court)  a liber amircorum has been published. It was edited by Leif Berg, Montserrat Enrich Mas, Peter Kempees and Dean Spielmann and is entitled 'Cohérence et impact de la jurisprudence de la Cour européenne des droits de l’homme. Liber amicorum Vincent Berger'. Although (mostly) in French, the book is bilingual with also English language contributions. This is the abstract:

L’éminent juriste Vincent Berger prend sa retraite après une carrière longue et brillante au sein du greffe de la Cour européenne des droits de l’homme qu’il termine comme jurisconsulte de la Cour. Il est aussi professeur au Collège d’Europe (Bruges et Natolin).

Ses anciens collègues, universitaires, juges et anciens juges de la Cour et membres de son greffe lui offrent cette collection de textes pour lui témoigner leur respect et leur amitié. Ces études érudites et originales font le point sur la place de la Convention et la Cour européennes des droits de l’homme en droit international et national. Elles examinent la cohérence et l’impact de la jurisprudence en mettant ainsi en exergue le rôle primordial du jurisconsulte de la Cour. 

Ces études érudites et origniales font le point sur la place de la  Convention et la Cour européennes des droits de l'homme en droit international et national. Elles examinent la cohérence et l'impact de la jurisprudence en mettant ainsi en exergue le rôle primordial du jurisconsulte de la Cour.

New Icelandic and Lithuanian Judges Elected

Yesterday, the Parliamentary Assembly of the Council of Europe (PACE) elected to new judges to the European Court of Human Rights. In respect of Lithuania, Egidius Kuris was elected by a large majority. Mr Kuris is currently professor of public law at Vilnius University. Previously, he also advised the government and was the president of the Constitutional Court of Lithuania. He was one of the co-fouddners of the Lithuanian Human Rights Centre. For his full CV, see here. In respect of Iceland, Róbert Ragnar Spanó (of both Icalandic and Italian nationality) was elected, also by a large majority. He is the current parliamentary ombudsman of Iceland and has previously worked, amongst many other functions, as as hoc judge in the EFTA Court and as professor of law. His CV can be found here. Both judges have been elected for a nine-year term, starting on 1 November of this year. Congratulations to both!

New Book on EU Accession to ECHR

After a range of articles on the issue, a monograph has now been published on the EU's forthcoming accession to the ECHR. The book, written by Paul Gragl of the City University of London, is entitled 'The Accession of the European Union to the European Convention on Human Rights' (Hart Publishing). This is the abstract:

After more than 30 years of discussion, negotiations between the Council of Europe and the European Union on the EU's accession to the European Convention on Human Rights have resulted in a Draft Accession Agreement. This will allow the EU to accede to the Convention within the next couple of years. As a consequence, the Union will become subject to the external judicial supervision of an international treaty regime. Individuals will also be entitled to submit applications against the Union, alleging that their fundamental rights have been violated by legal acts rooted in EU law, directly to the Strasbourg Court.

As the first comprehensive monograph on this topic, this book examines the concerns for the EU's legal system in relation to accession and the question of whether and how accession and the system of human rights protection under the Convention can be effectively reconciled with the autonomy of EU law. It also takes into account how this objective can be attained without jeopardising the current system of individual human rights protection under the Convention. The main chapters deal with the legal status and rank of the Convention and the Accession Agreement within Union law after accession; the external review of EU law by Strasbourg and the potential subordination of the Luxembourg Court; the future of individual applications and the so-called co-respondent mechanism; the legal arrangement of inter-party cases after accession and the presumable clash of jurisdictions between Strasbourg and Luxembourg; and the interplay between the Convention's subsidiarity principle (the exhaustion of local remedies) and the prior involvement of the Luxembourg Court in EU-related cases.

The analysis presented in this book comes at a crucial point in the history of European human rights law, offering a holistic and detailed enquiry into the EU's accession to the ECHR and how this move can be reconciled with the autonomy of EU law.

My New Article on Freedom of Expression and ECHR & ICCPR

I have just posted on SSRN my contribution entitled 'Tacit Citing - The Scarcity of Judicial Dialogue between the Global and the Regional Human Rights Mechanisms in Freedom of Expression Cases' for the book: Tarlach McGonagle and Yvonne Donders (eds.), The United Nations and Freedom of Expression and Information: Critical Perspectives (2013, Forthcoming). This is the abstract:

This chapter delves into the issue of possible interactions concerning freedom of expression standards between the global and the regional levels. The continuing development and interpretation of human rights norms on these two levels poses questions of coherence. The chapter conducts a case study in order to assess whether there is a (quasi-)judicial dialogue between both levels. Specifically, the norm of freedom of expression contained in the International Covenant on Civil and Political Rights (ICCPR), as interpreted by the UN Human Rights Committee, is compared with the jurisprudence of the European Court of Human Rights in Strasbourg. This specific comparison has been chosen because the Strasbourg system is usually considered to be the most developed and detailed in the sense of norm-interpretation and therefore provides the greatest chance of conducting a viable comparison with the UN level. The chapter also includes a short comparison with the American and African regional human rights systems in this respect. Does the one explicitly refer to the interpretations of the other and vice versa or is any guidance only taken up implicitly? Can either of the two be seen as trend-setters or rather as followers and is there coherence between the two levels of norm-interpretation? These are some of the questions that are addressed in the present contribution.

Conference on Effects and Implementation of ECtHR Judgments

On 20 and 21 September a large conference entitled 'Judgments of the European Court of Human Rights – Effects and Implementation' is organised at the Institute of International Law at Goettingen University in Germany. The convenors are Mark Villiger, section president at the Court in Strasbourg and professor at Zürich University, and Anja Seibert-Fohr, professor in Goetingen and member of the UN Human Rights Committee. This is the description of the conference:  

The conference seeks to consider new ways of enhancing the interplay between the Court and domestic implementation. Among the topics addressed are: the binding effects of the Court’s judgments, the scope and reach of the award of damages, the role of the national courts regarding the implementation of the ECtHR’s judgments, the role of subsidiarity and the future role of the ECtHR in the implementation of its judgments.

In order to stimulate the dialogue among the relevant professions judges from the Strasbourg Court, from various Constitutional Courts and Supreme Courts as well as academics and practitioners will participate in the conference. Several judges of the European Court of Human Rights including President Dean Spielmann have committed to give presentations.

Registration is required by 31. July 2013. Please contact Ms Doris Ruhr: humrts at gwdg.de

This is the programme:

Friday, 20 September 2013

14h00 Welcome address - Anja SEIBERT-FOHR and Mark VILLIGER

14h15 Keynote Speech - Dean SPIELMANN, President of the European Court of Human Rights

14h45 “Binding Effects and Declaratory Nature of the Court’s Judgments”

Chair: Helene RUIZ-FABRI, Speakers: Mark VILLIGER, Hans Joachim CREMER, Péter KOVAC, Almut WITTLING-VOGEL

Discussion

16h15 Coffee break

16h45 “Award of Damages”

Chair: Paul MAHONEY, Speakers: Jonas CHRISTOFFERSEN, Bertrand FAVREAU, Julia LAFFRANQUE, Elisabeth LAMBERT-ABDELGAWAD

Discussion

18h15 End of first day


Saturday, 21 September 2013

09h00 “The Role of the National Courts in the Implementation of the Court’s Judgments”

Chair: Peter-Tobias STOLL, Speakers: Jacek CHLEBNY, Thomas GIEGERICH, Peter M. HUBER

Discussion

10h30 Coffee break

11h00 “Role of Subsidiarity”

Chair: Geir ULFSTEIN, Speakers:  Sabino CASSESE, John LAWS, Angelika NUßBERGER, Derek WALTON

Discussion

12h30 Lunch Break

13h30 “The Future Role of the Court in the Implementation of its Judgments”

Chair: Renate JAEGER, Speakers: Mads ANDENAS, Andreas PAULUS, Linos-Alexandre SICILIANOS

Discussion

15h00 Closing Speech - Anja SEIBERT-FOHR and Mark VILLIGER

15h30 End of Conference