Book on ECHR in National Case-Law

Janneke Gerards and Joseph Fleuren of Radboud University Nijmegen have just published a book on the different ways in which national courts have dealt with the ECHR and the case-law of the European Court of Human Rights in their own jurisprudence. The book entitled 'Implementation of the European Conventionon Human Rights and of the judgments of the ECtHR in national case law' deals with a selected number of countries: Belgium, France, Sweden, the United Kingdom, Germany, and the Netherlands. A comparative analysis is included. The table of contents can be found here and this is the abstract:

The European Convention on Human Rights has a large impact on national law, in particular through the case-law of the European Court of Human Rights. In most Convention states, the authorities loyally implement the Court’s interpretations in their legislation, case-law and administrative decisions. Over the past few years, however, especially in some Western European democracies where the ECHR is robustly incorporated into the national legal systems, critical voices have been raised to question the degree of the Court’s influence over national law and politics.

It turns out that many of the current debates are based on two implied assumptions and intuitions. It is felt, firstly, that the Court exercises such great influence that national authorities, in particular courts, have to act as marionettes – they must follow the Court’s movements, even if they want to act differently. The second assumption is that this marionette behaviour and its constitutionally questionable consequences are facilitated and accommodated by the legal and constitutional mechanisms determining the national courts’ competences.

This book questions the correctness of these assumptions and aims for further study of them. This is done by disentangling and illuminating the different elements underlying the interrelationship between the Court and the national courts. The objective is to distinguish between the requirements set by the Court; the constitutional powers and competences of national courts to interpret and apply international law, in particular the Convention; the way in which these courts actually use these competences to deal with the Court’s interpretative approaches; and the type of criticism that is levelled at the Court’s case-law. These elements are studied from the perspective of the Court as well as from a national perspective, in particular for Belgium, France, Germany, the Netherlands, Sweden and the United Kingdom.

Analysing these elements separately enables a fruitful assessment of their interrelationship and provides a sound basis for a constructive debate on the implementation of the Convention in national law, which is based on solid constitutional foundations rather than assumptions and intuitions. The current book is therefore of great interest to those who are interested in debates on the interrelationship between the Court and the states – scholars, as well as judges, policy makers and politicians – but also to those who take a more general interest in constitutional implementation mechanisms, judicial powers and judicial argumentation. 

Report on Reinforcing the Court's Independence

Rapporteur Boriss Cilevičs, a member of the Council of Europe's Parliamentary Assembly from Latvia, has written a report aimed to support and further strengthen the independence of the European Court of Human Rights. The report reads, in its first part, as a concise introduction to the theme of how the Court is organised and how judges are elected. It then goes on to touch upon a number of specific matters and upcoming reforms related to protecting the factual independence of judges. This ranges from criteria of age and retirement, through privileges and immunities to social security and pensions. The report deals, for example, with the post-Court life of judges, noting the following:

 

"... a number of former judges of the Court have experienced difficulties in finding employment.  In some extreme cases, these difficulties may, purportedly, be caused by an ’insufficiently patriotic’ position of judges taken on prominent cases against their own states. To put it plainly, an ’overly principled stand’ by a judge may entail an element of ‘revenge’ by national authorities upon the judge’s retirement. The risk of similar treatment for a serving judge may compromise judicial independence."

 

The report, finally, also addresses concerns about the independence of the Court's support staff, the Registry, on the specific issue of staff seconded from state parties and on staff on temporary contracts. The report ends with a positive note - the Court as the crown jewel of the Council of Europe - but simultaneously remarks that on the specfic points dealt with there is still room for improvement.

Book on Legitimate Expectations and the ECHR

Maya Sigron has written a monograph on the concept of legitimate expectations under the right to property. The book, entitled "Legitimate Expectations Under Article 1 of Protocol No. 1 to the European Convention on Human Rights" has been published with Intersentia. This is the abstract:

This book provides a thorough evaluation of the complex relationship between legitimate expectations and the protection of property guaranteed by Article 1 of Protocol No. 1 to the European Convention on Human Rights.

To set the context, the book first gives a brief but comprehensive analysis of property rights from Ancient Greek times until now. Subsequently, it compares the protection of legitimate expectations with its underlying principles in other legal orders.

The book’s core addresses three main research questions: What are the conditions for the creation and protection of legitimate expectations in the context of Article 1 of Protocol No. 1? What role do confidence, detriment and fair balance play in that context? What purpose do legitimate expectations fulfil in the context of Article 1 of Protocol No. 1?

To answer these questions, the author conducts an extensive analysis of the European Court of Human Rights’ case-law related to legitimate expectations under Article 1 of Protocol No. 1. On the occasion of this analysis, she collects and lists the main misunderstandings with respect to legitimate expectations in cases brought before the European Court of Human Rights under Article 1 of Protocol No. 1.

The conclusion assesses the major results and paves the way for future debate about the doctrine of legitimate expectations under Article 1 of Protocol No. 1.

Court Reform Compilation Document

The Council of Europe has compiled a large document of over 500 pages which reflects the ongoing reform efforts regarding the European Court of Human Rights of the last few years. It is entitled 'The European Convention on Human Rights : Interlaken,İzmir, Brighton and beyond. A compilation of instruments and texts relating tothe ongoing reform of the ECHR' and is freely accessible online. It includes the key speeches and concluding documents of the three mentioned intergovernmental conferences, reports of the Steering Committee on Human Rights (CDDH), the texts of Protocols 15 and 16 and their explanatory reports. A very useful all-in-one compilation of the current state of affairs on reform. The newest updates on the reform work can be found, as noted earlier, on this dedicated website. 

Summer School on European Human Rights

The Center for European Law of the University of Bologna, in cooperation with King’s College London and the University of Strasbourg are organising their XIVth joint edition of the  Summer School on the protection of fundamental rights in Europe. The Summer School, to be held in French and English, will be held from the 30th of June to the 4th of July in the magnificent venue of the Castle of Bertinoro. In particular, emphasis will be placed on the European Convention of Human Rights - the rights it guarantees, the system of protection it creates – and the European Charter of Fundamental Rights. In this context the relationship between the European Court of Justice and the European Court of Human Rights will be discussed. Full details on content and registration can be found here.

ECHR Guide for Lawyers

The Council of Bars and Law Societies of Europe (CCBE) has published a special guide entitled 'The European Court of Human Rights - Questions and Answers for Lawyers' online. The small booklet can be seen as a very practical, albeit also quite basic (it includes only "key information", as the editors state) introduction to the aspects of the Strasbourg system relevant to practicing lawyers. Questions answered range from "How should ECHR case law be invoked in the national proceedings?" to "Can applicants obtain legal aid in respect of proceedings before the Court?" Many answers include links to further relevant information. This is the abstract of the guide: 

"This guide is directed at lawyers intending to bring a case before the ECHR. The guide, which is a list of questions and answers, contains information and practical advice for proceedings before national courts prior to application to the ECHR, before the Court itself, and during the enforcement of the Court’s judgments.

A number of questions are covered in the handbook, including: at what stage of proceedings before national courts should human rights violations be pleaded under the European Convention of Human Rights; how to submit an application to the Court; the technical aspects of proceedings; and the role of a lawyer once a judgment has been rendered. Also included are reference to tools and resources available for parties and their lawyers."

Conference: Fundamental Rights in Europe - A Matter for Two Courts

On Friday 13 June, Oxford Brookes University and the Council of Europe are organising a conference in Strasbourg entitled 'Fundamental Rights in Europe: A Matter for Two Courts'. The event is meant to discuss and disseminate the research emerging from two projects. First, a study of the British Academy entitled 'Reflections on the Architecture of the European Union after the Treaty of Lisbon: The European Approach to Fundamental Rights'. Secondly, research as a result of an earlier conference with the same title which was held at Oxford Brookes in January 2013. Te Strasbourg event is "addressed to policy makers of the Council of Europe, the Council of the EU, the EU Commission, and the European Parliament, judges of the CJEU and the ECtHR, and scholars working in the field of fundamental rights." The full conference programme as well as information on registration can be found here.

Please email Dr Sonia Morano-Foadi smorano-foadi at brookes.ac.uk if you wish to receive a copy of the Report which will be presented on 13th June 2014

HUDOC in Russian

The Court's HUDOC case-law search engine is available since this month in the language of the Convention's most populous state party: Russian. Part of the ever-expanding availability of ECHR information in other languages than English and French on the Court's website, this is a new major step forwards. Earlier, translations of important judgments into Russian (currently over a thousand already) were already included in HUDOC, but now the search engine also has a Russian version of its portal. Factsheets in Russian on the jurisprudence of the Court and other relevant information are brought together on a special web page. In addition, the Russain version of the Court's 50 year anniversary book, The Conscience of Europe, can be retrieved here. See the press release on the launch of the Russian version of HUDOC here (it can also be accessed by clicking on "Other languages" at the upper right in the HUDOC interface). Let's hope that this increased accessibility of European human rights material may trickle up to levels where its insights are most needed in the period of current tension.

My New Article in ICLQ on ECHR, Violence and Free Speech

I am very happy to announce that my article entitled 'Dangerous Expressions: The ECHR, Violence and Free Speech' has just been published in the International and Comparative Law Quarterly (vol. 63, April 2014, pp. 491-503). The article is part of a larger research project which I have just finalised on the linkages between freedom of expression, the media, and violent conflict escalation. It investigates when speech becomes dangerous and is related to violent conflict escalation. The ICLQ article looks at the ECHR-related aspects of that issue. This is the abstract:

How should one balance the freedom of expression and the prevention of violence? This article delves into the grey zone between hate speech and incitement to violence by assessing the jurisprudence of the European Court of Human Rights in cases of allegedly dangerous speech. Rather than labelling this case law as simplistic, as some critics even within the Court have done, it is shown that the jurisprudence reveals cleavages within the Court on whether to adopt a more or less consequentialist approach on the links between speech and violence. Freedom of expression cases should preferably be assessed on the merits under Article 10 ECHR since this allows for a balancing of the various interests involved. The application of the abuse of rights clause of Article 17 ECHR is for that very reason undesirable, in addition to its inconsistent use by the Court.

Enjoy reading!

Failures to Comply with Interim Measures

There are still serious and worrying failures of state parties to the Convention to comply with interim measures indicated by the Court under Rule 39 of the Rules of Court. This was the message coming from the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly (PACE) of the Council of Europe last week. It adopted a draft resolution and draft recommendation on the issue, to be sent to the plenary of PACE. Here is a summary of the Committee's position:

"The committee strongly condemns instances of outright violations by several States Parties to the Convention of the Court’s interim measures aimed at protecting applicants from extradition or deportation to countries where they would be at risk of, in particular, torture. It is worried about the recent phenomenon, observed in the Russian Federation, of the temporary disappearance of applicants protected by interim measures and their subsequent reappearance in the country which had requested extradition. This can be likened to the practice of “extraordinary renditions” repeatedly condemned by the Parliamentary Assembly.

The committee welcomes the increasing use, by the Court, of factual presumptions and the reversal of the burden of proof in dealing with refusals of States Parties to co-operate with it, which consist in their failure to provide full, frank and fair disclosure in response to requests by the Court for further information or evidence."

For a full overview of cases in which Rule 39 was breached or allegedly breached and the response of the Court, see here. And see here for a verbatim of the debate itself. The report of the rapporteur, Mr Kimmo Sasi, includes a very precise overview of recent instances of non-compiance and is to be found here (see under explanatory memorandum).