New Book on Positive and Negative Obligations under the ECHR

Laurens Lavrysen (Ghent University) has just published a new book on the classic concept of positive obligations under the ECHR. The book is published with Intersentia Publishers and is entitled 'Human Rights in a Positive State. Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights'. It is based on his PhD research for which he was awarded his degree earlier this year. This is the abstract of the book: 

"The European Court of Human Rights has long abandoned the view that human rights merely impose obligations of restraint on State authorities (so-called negative obligations). In addition, States are under positive obligations to take steps to actively protect and ensure the rights and freedoms guaranteed by the European Convention on Human Rights. While the concept of positive obligations has become increasingly important in the jurisprudence of the European Court, it remains relatively under-explored in the literature. This book goes beyond the existing scholarship by analytically, critically and normatively engaging with the Court’s positive obligations case law in a comprehensive and in-depth manner.

The book begins by providing an overview of the Court’s jurisprudence in this area. Building upon this overview, it brings to the fore the legal methodological consequences attached by the Court to the labels of positive and negative obligations. It moreover critically examines how the Court constructs the distinction between positive and negative obligations, building upon the underlying distinctions between public authorities and private entities, on the one hand, and State action and inaction, on the other. The central argument made in this volume is that in a positive State, in which the authorities have affirmatively intervened in so many areas, it has become increasingly difficult to draw a baseline to properly distinguish between action and inaction. Finally, the author makes suggestions for legal methodological change. This book will prove to be highly valuable for any practitioner or academic interested in the law of the European Convention on Human Rights."

New Book on Parliaments and the ECHR

Alice Donald and Philip Leach of Middlesex University have published a new book on the linkages between national legislatives and the Strasbourg system: Parliaments and the European Court of Human Rights (Oxford University Press 2016). Based on years of research, it includes five country case studies on the extent to which parliaments contribute to (or hamper) the implementation of the judgments of the European Court of Human Rights. This is the abstract: 

The European system of human rights protection faces institutional and political pressures which threaten its very survival. These institutional pressures stem from the backlog of applications before the European Court of Human Rights, the large number of its judgments that remain unimplemented, and the political pressures that arise from sustained attacks on the Court's legitimacy and authority, notably from politicians and jurists in the United Kingdom. 

This book addresses the theme which lies at the heart of these pressures: the role of national parliaments in the implementation of judgments of the Court. It combines theoretical and empirical insights into the role of parliaments in securing domestic compliance with the Court's decisions, and provides detailed investigation of five European states with differing records of human rights compliance and parliamentary mobilisation: Ukraine, Romania, the United Kingdom, Germany, and the Netherlands.

How far are parliaments engaged in implementation, and how far should they be? Do parliaments advance or hinder human rights compliance? Is it ever justifiable for parliaments to defy judgments of the Court? And how significant is the role played by the Parliamentary Assembly of the Council of Europe? Drawing on the fields of international law, international relations, political science, and political philosophy, the book argues that adverse human rights judgments not only confer obligations on parliamentarians but also create opportunities for them to develop influential interpretations of human rights and enhance their own democratic legitimacy. It makes an authoritative contribution to debate about the future of the European and other supranational human rights mechanisms and the broader relationship between democracy, human rights, and legitimate authority.

Book Launch on ECHR and Sexual Orientation Discrimination

Next month, the new book of Paul Johnson (University of York) entitled 'Going to Strasbourg. An Oral History of Sexual Orientation Discrimination and the European Convention on Human Rights' (Oxford University Press, just published this month), will be launched at a special event in London. This is the book's abstract;

'Since its inception, the European Convention on Human Rights has been a beacon of hope to gay men and lesbians in Europe. Going to Strasbourg: An Oral History of Sexual Orientation Discrimination and the European Convention on Human Rights provides a comprehensive account of how individuals in the United Kingdom have utilized the Convention, by way of making applications to its organs in Strasbourg in order to challenge sexual orientation discrimination.

Combining an exhaustive analysis of Strasbourg case law with nineteen unique oral histories of applicants, legal professionals, and campaigners, this book is the definitive history of the role that 'going to Strasbourg' has played in eradicating discrimination and establishing legal equality on the grounds of sexual orientation in the UK.' 

The book launch will feature, apart from the author, short talks by Lord Cashman and a number of former applicants in Strasbourg. For more information on attending this special event, see here.

New ECHR Readings

More new ECHR readings, as the start of the academic and work year is nearing:

The June issue of the Human Rights Law Review (Volume 16, Issue 2, 2016) includes:

*Sandra Fredman, 'Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights', pp. 273-301.

* Dinah Shelton, 'Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights', pp. 303-322. 

The September issue of the same journal includes:

* Saïla Ouald Chaib, 'Procedural Fairness as a Vehicle for Inclusion in the Freedom of Religion Jurisprudence of the Strasbourg Court',  pp. 483-510. 

* Eleni Polymenopoulou, 'Does One Swallow Make a Spring? Artistic and Literary Freedom at the European Court of Human Rights', pp. 511-539. 

* Andrew Dyer, 'Irreducible Life Sentences: What Difference have the European Convention on Human Rights and the United Kingdom Human Rights Act Made?', pp. 541-584.

Other readings: 

* Nikos Vogiatzis, The Admissibility Criterion under Article 35(3)(b) ECHR: A 'Significant Disadvantage' to Human Rights Protection?', International and Comparative Law Quarterly, Vol. 65, Issue 01 (2016) pp 185-211.

* Miles Jackson has posted on ssrn: 'Freeing Soering: The ECHR, State Complicity in Torture, and Jurisdiction' (European Journal of International Law, forthcoming). This is the abstract:

Over the last ten years, there have been numerous cases of ECHR-state party complicity in torture by foreign states. Some of these cases have been entirely extraterritorial – that is, the victim is never within the territory of the complicit state. Applying the orthodox rules of attribution in international law and the current understanding of the jurisdiction under Article 1 ECHR, these cases of extraterritorial complicity would seem not to lead to the responsibility of the complicit state under the Convention. In other words, the ECHR allows states to facilitate acts of torture abroad where they could not do so at home. 

This is an unprincipled gap in the protections provided by the Convention.This article argues (i) that this unprincipled gap may be overcome by re-imagining the rule in Soering as a preventive complicity rule and extending it to other forms of complicity in torture, and (ii) that such a re-imagination is supported by doctrine and principles deeply embedded in the case law of the European Court. An expansive interpretation of Article 1 ECHR to capture cases of state complicity in extraterritorial torture would be justified.

* Spanier, Benny; Issi Dorron, Israel and Milman-Silvan, Faina have posted on ssrn: ‘In Course of Change? Soft Law, Elder Rights, and the European Court of Human Rights’, Law and Inequality 34(1), pp. 55-86. This is the abstract: 

The European Court of Human Rights (ECtHR) is a significant human rights tribunal. The European convention on Human rights (ECHR) is the only applicable instrument for the ECtHR and there is no explicit expression of older persons’ rights there .One of the key international instruments aimed at promoting the rights of older persons are “soft law”. Up to day, no study has attempted to explore the usage of “soft law” in cases brought before the ECtHR on issues concerning the rights of older persons.

The question is to what extent is the ECtHR aware of the soft law that addresses rights of older persons? Does the wealth of soft law on the matter of older persons permeate the Court? Allegedly, these norms could be used by older persons or by the Court when they negotiate and determine the rights of older persons.

A total of 1,503 judgments were delivered to older persons from the 12, 680 overall judgments at the period between January 1st 2000 and January 1st 2011 (11 years in total). These 1,503 judgments constituted the “study population” and the database for this study. Basic descriptive analysis was performed on this population. Due to limited time and resources, we used stratified random sampling of 226 judgments, which were fully analyzed for this study. 

The study’s findings show that, with very high probability, no soft law legal Instruments that address older persons were mentioned in the ECtHR’s judgments and claims. As a rule, the court has made sparse use of soft law (not of older persons) in adjudicating cases that concern the older persons. When the judges do turn to soft law in those cases, it is for general topics rather than specific issues of aging or older person's rights.

The study demonstrates the usefulness of a recommendation created by the Council of Europe itself such as the recommendation adopted on 2014 to promote the human rights of older persons. It is encouraging that the ECtHR is not blind to soft law, and it makes use of it. The effort required now is to increase awareness and transition to practical use of this law. The struggle over elder rights needs to include judicious entry to the Court. Success in using soft law before the ECtHR would constitute realization of the potential of soft law that has yet to be realized.

New Book on Non-Refoulement under ECHR and CAT

In this quiet Summer time, the topic of forced migration remains topical as ever. Thus, the publication of a new book on non-refoulement is very welcome. Dr Eman Hamdan (University of Geneva) has written 'The Principle of Non-Refoulement under the ECHR and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment' with Brill Publishers. This is the abstract: 

'In this study, Eman Hamdan examines the protection against refoulement under the European Convention on Human Rights and the UN Convention against Torture, with the aim to determine which of those Conventions affords better protection for international protection seekers.

Hamdan explores the scope and content of the principle of non-refoulement under both Conventions and the application of the principle to the immigration control measures and the extraordinary rendition operations.

The author provides a comprehensive and comparative analysis of the case-law of both the European Court of Human Rights and the UN Committee against Torture on the procedural and substantive aspects of the principle of non-refoulement, in order to help practitioners to determine which of these human rights treaty bodies is more favorable for their specific non-refoulement case.

This book was chosen to participate in the Professor Walther Hug Prize 2014-2015, which is a prize for the best legal researches in Switzerland for each academic year.'

New Book on Criticism of the Court

Patricia Popelier, Sarah Lambrecht, and Koen Lemmens have just published an edited volume entitled 'Criticism of the European Court of Human Rights.  Shifting the Convention system: Counter-Dynamics and the National and EU Level.' The book was published in Intersentia's law and Cosmopolitan Values Series. The full table of contents can be found here. This is the abstract:

"For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. It also assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. The book is topical and innovative, as these questions have so far remained largely unexplored, especially cross-nationally.

Far from focusing exclusively on those voices that are currently raised so loud, conclusions are based on comparative in-depth reports, covering fifteen Contracting Parties and the EU.

With contributions of Olgun Akbulut, Tilmann Altwicker, Katarzyna Blay-Grabarczyk, Anna Gamper, Janneke Gerards, Krystyna Kowalik-Bańczyk, Sarah Lambrecht, Koen Lemmens, Lubomir Majerčík, Giuseppe Martinico, Roger Masterman, Aaron Matta, Christophe Maubernard, Armen Mazmanyan, Katharina Pabel, Eszter Polgári, Patricia Popelier, Clara Rauchegger, Michael Reiertsen and Henrik Wenander."

New Court Videos

The Registry has put new training videos in its series 'COURTalks-disCOURs' online. The videos were made together with the Human Rights Education for Legal Professionals Programme (HELP) of the Council of Europe. The videos of around 25 minutes give an overrview of the Court's jurispriudence in two thematic areas:

* Asylum

* Terrorism

The videos are now available in English and French. In the near future, subtitles in many more languages will be provided. The videos are accompanied by full written versions of the spoken text in the videos.

Handbook on European Law on Access to Justice

After an early Summer break, I am back at posting on here. Europe's institutions may be under a lot of pressure, but at least cooperation between the European guardians of human rights is still working. The EU's Fundamental Rights Agency and the European Court of Human Rights have just launched together the 'Handbook on European law relating to access to justice'. It is available in online open access format, not just in English, but also in French. Versions in several other language will follow. This is the editors' summary:

Access to justice is an important element of the rule of law. It enables individuals to protect themselves against infringements of their rights, to remedy civil wrongs, to hold executive power accountable and to defend themselves in criminal proceedings. This handbook summarises the key European legal principles in the area of access to justice, focusing on civil and criminal law.

The handbook seeks to raise awareness of the relevant legal standards set by the European Union (EU) and the Council of Europe, particularly through the case law of the Court of Justice of the European Union and the European Court of Human Rights. The handbook is designed to serve as a practical guide for lawyers, judges and other legal practitioners involved in litigation in the EU and in Council of Europe member states, as well as for individuals who work for non-governmental organisations and other entities that deal with the administration of justice.

The publication focuses principally on civil and criminal law. It covers such issues as a fair and public hearing before an independent and impartial tribunal; legal aid; the right to be advised, defended and represented; the right to an effective remedy; length of proceedings; and other limitations on access to justice. It also examines access to justice in selected areas: victims of crime; people with disabilities; prisoners and pre-trial detainees; environmental law; and e-justice. 

Court's Annual Overview Series

The European Court of Human Rights has now made available in print, through Wolf Legal Publishers, its new series 'Overview of the Case-Law of the European Court of Human Rights'. This yearly reflection of the Court's jurisprudence - a reprint from the Court’s Annual Report - highlights judgments and decisions which, in the view of the Court's Jurisconsult, raise new issues or important matters of general interest. Print editions of 2014 and 2015, in French and in English, are now available. This is the abstract:

'Every year, the European Court of Human Rights delivers a large number of judgments and an even greater number of decisions, thus adding to its already formidable body of case-law. This can make it difficult for people outside the Court to know which cases break new ground or address new issues. An increasingly important aspect of the Court’s work has thus become to identify such cases and to disseminate them in a convenient and accessible format.

This new annual Overview series, available in English and French, seeks to respond to that need by focusing on the most important cases the Court deals with each year. All the cases are selected by the Court’s Jurisconsult’s Directorate on the basis of their jurisprudential interest. In addition to the cases chosen for publication in the Court’s Reports of Judgments and Decisions, they include a number of other cases that raise issues of general interest, establish new principles, or develop or clarify the case-law. The approach has been to draw attention to the salient points, allowing the reader to appreciate the jurisprudential significance of a particular case.'

The ECHR and the UK - The Tragedy in the Form of Comedy

In the past two weeks, with the United Kingdom's referendum on a potential Brexit approaching, the UK's Government has been speaking with an increasingly incoherent number of voices. Home Secretary Theresa May favours the UK remaining in the European Union but leaving the European Convention of Human Rights (see her speech in this report here), whereas Justice Secretary wants the UK to leave the EU, but remain in the ECHR, while ignoring the rulings of the Court. Some people have already described the Government's position as totally incoherent. In the fine British tradition of humour of Monty Python, a group of actors (Patrick Stewart, Adrian Scarborough and Sarah Solemani) have tackled the issue head-on in a marvellous short sketch called "What has the ECHR ever done for us?", now to be seen on the website of The Guardian. Well worth watching!