Registration for the European Human Rights Moot Court Competition is Now Open

The European Human Rights Moot Court Competition (EHRMCC) is a Europe-wide moot court competition dedicated to the European Convention on Human Rights. It was founded in 2012 by the European Law Student Association and the Council of Europe. 

 

The Competition simulates the proceedings before the European Court of Human Rights based on a fictional case. This year, the fictional case very much resembles the reality in which we live in, raising issues of state of emergency during an epidemic, protests against such measures, and State’s use of facial recognition technologies to identify those allegedly violating emergency measures. 

 

The registration of teams for the Competition is now open until 1 November 2020. As of last year, all teams must first compete at the regional level. The best 18 teams from the regional rounds compete in the final round in Strasbourg, in the Palace of Europe and the European Court of Human Rights. In addition to the experience that students gain from the Competition, all members of the winning team are invited for a traineeship at the Strasbourg Court. 

 

Good luck to all those participating in this year’s Competition!

 

As this is my first post as a co-editor, I avail myself of this opportunity to express how honored I am to join the ECHR Blog, and grateful to Antoine Buyse, as a founder and editor of this Blog, for his trust in me. 

 

I always considered this Blog as an important platform to keep those interested in the ECHR abreast of the ever-increasing developments related to the Convention system and engage in discussion of those developments. I join the ECHR Blog with the aim to further serve that goal.

 

Best wishes, Kushtrim Istrefi

 

Expanding the ECHR Blog - A New Face

 

Dear readers of the ECHR Blog, this blog is about to expand and renew! As some of you will know, keeping up a blog can be quite a daunting - yet very enjoyable - task. After more than 12.5 years and more than a 1000 posts of keeping up this blog all by myself since I founded it in May 2008, I am very happy that as of this week, this blog has an additional editor, my SIM colleague dr Kushtrim Istrefi. 

Kushtrim Istrefi is an assistant Professor with the Netherlands Institute of Human Rights (SIM) at Utrecht University. He holds a PhD from the University of Graz. His research focuses on the intersections of fundamental rights law and international security, with an emphasis on the ECHR. He has published on, among others, states of emergency, targeted sanctions, counter-terrorism, judicial activism and secession. Next to his academic work, Kushtrim has litigated complex cases on the right to life, prohibition of torture and the right to fair trial before the European Court of Human Rights and the EULEX Human Rights Review Panel. He also provided legal opinions to the Kosovo Constitutional Court and Kosovo Parliament on Kosovo-Serbia agreements. He was also a visiting researcher at the European Court of Human Rights itself. He is in the editorial board of the European Convention on Human Rights Law Review and coaches Utrecht University Law School's European Human Rights Moot Court Competition team. 

I am very happy to add such a committed expert on the ECHR to this blog's editorial team. Together we will run the blog, add new items and can be approached for any ECHR-related conference announcements, publications, etc. Kushtrim, welcome on board! 

Dear readers, in the coming time we will incrementally implement more changes - so please keep an eye out for new things!

Kind wishes, Antoine Buyse

Online Conference on 70 Years ECHR

Next week, on Thursday 17 September 2020, the Institute of International and European Union Law of the Law School of Mykolas Romeris University in Lithuania is organizing an international e-Conference on '70 years of the European Convention on Human Rights and Fundamental Freedoms: challenges and prospects'. You can register for it here. This is what the conference is about:

'The Conference is intending to mark the 70th anniversary of the European Convention of Human Rights, highlighting its crucial role as one of the key international and European judicial instruments.

The Convention is a living instrument, to be interpreted by the European Court of Human Rights in the present-day conditions (see, among other authorities, Vallianatos and Others v. Greece [GC], nos. 29381/09, 32684/09, § 84); an evolutive interpretation of the rights and freedoms enshrined in the text of the Convention enables necessarily the Court to take into account new technological and societal developments and changes that were unforeseeable 70 years ago. One of such nowadays challenges is the COVID-19 pandemic. Therefore, the effectiveness of the Convention rights protection at national and international level during the COVID-19 pandemic is a significant challenge for majority of European States, including Lithuania. 

The conference aims to create a platform for international scholars and practitioners, human rights activists and governmental bodies to participate in a discussion on the effective protection of human rights and a special role of the ECHR.'

New Session of MOOC on the ECHR

This coming Monday 7 September our Massive Open Online Course (MOOC) entitled 'Human Rights for Open Societies. An Introduction into the European Convention on Human Rights' will kick off again with, due to the pandemic, a big new group of prospective online students. You can still enroll, for free, if you would like to join! The course will run again for six weeks. This is what the course is about:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work.

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

You can watch the introductory video here:

Guest Post on Court President's Visit to Turkey

Today a short guest post on the visit of the president Robert Spano of the European Court of Human Rights to Turkey, which has led to a lot of discussion in the Turkish human rights community. The Court's President amongst others met with the Turkish president, and according to the Court's own website, he "recalled the principles set out in the European Convention on Human Rights. He stressed the importance of the rule of law and democracy and in particular in those contexts the need to safeguard the independence of the judiciary and freedom of expression. Where the Court found a violation of the Convention, States were under a clear obligation to comply with that ruling and draw the necessary consequences. This was central to the effective functioning of the Convention system within the Council of Europe." This is the guest post:

Harry Hummer, senior policy adviser, Netherlands Helsinki Committee

'The visit of European Court of Human Rights president Robert Spano to Turkey today and tomorrow is big news in the country. Human rights defenders and victims of repression are concerned that he is given an honorary doctorate by one of the universities that summarily fired for political reasons a large number of academics after the July 2016 coup attempt. This issue has not been taken up by the Court yet – complaints have been referred back to a widely criticized Turkish appeal procedure – but in all likelihood will be in future.

The IHD, one of the oldest Turkish human rights NGOs, issued an open letter to Spano, expressing surprise that they had heard about the visit only from media reports and wondering why there are no civil society visits included in his programme.   

In addition to the honorary doctorate ceremony, Spano also spoke with high level Turkish government and judicial officials, and gave a speech at the Justice Academy.'

Special Issue ECHR and Wider International Law

The International Journal of Human Rights has published a special issue (vol. 24, issue 7, 2020) with a focus on 'the Relationship Between the European Convention on Human Rights and Wider International Law'. Most of the articles were published online earlier on already separately (some almost two years ago), but they are now bound together by an editorial. These are the contents:

* Geir Ulfstein , Morten Ruud & Andreas Føllesdal, Editorial: The European Convention on Human Rights and other parts of international law.

The ECHR and General International Law

* Geir Ulfstein, Interpretation of the ECHR in light of the Vienna Convention on the Law of Treaties.

* James Crawford & Amelia Keene, Interpretation of the human rights treaties by the International Court of Justice.

* Helen Keller & Reto Walther, Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3.

The ECHR’s Relations With Other International Human Rights Regimes 

 

 

* Vibeke Blaker Strand, Interpreting the ECHR in its normative environment: interaction between the ECHR, the UN convention on the elimination of all forms of discrimination against women and the UN convention on the rights of the child.

The ECHR and EU Accession

* Tonje Meinich, EU accession to the European Convention on Human Rights – challenges in the negotiations.

* Martin Kuijer, The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession.

New Book on Civil Justice and European Human Rights Jurisprudence

Andrej Auersperger Matić, of the European Parliament, has published a new book with Cambridge University Press entitled 'Just Words. The Effectiveness of Civil Justice in European Human Rights Jurisprudence'. This is the abstract:

'This book examines the role of the European Court of Human Rights in promoting standards of effective civil justice in Europe. It defines judicial effectiveness as composed of three main components, namely the length, cost and predictability of proceedings. Following a comprehensive review of the relevant case law, the book argues that the legal standards established by the Court in these areas are rather modest, and that the legal reasoning behind them is predominantly formalist. Rather than developing an understanding of the relevant policy choices that determine the institutional framework of civil justice, the Court bases its decisions on abstract concepts like 'reasonable time', 'access to court' and 'legal certainty'. By sidelining the key institutional issues such as resource allocation and incentives, the Court has produced a largely theoretical case law that actually has little value for persons who wish to enforce their rights in courts.

Includes both a comprehensive definition of effectiveness as a legal concept and associated European human rights law

Analyses European Court of Human Rights case law from a pragmatic and empirical perspective allowing the reader to understand the distinction between rights and policy as often superficial and judging as a complex practice

Critically examines the work of the European Court of Human Rights helping the reader to review the work of European courts with a more critical eye and understand its problems.'

New Edition of German-Language ECHR Handbook by Mark Villiger

The newest, third edition of Mark Villiger's famous German-language handbook on the ECHR has been published. Judge Villiger is a leading expert on the Convention and one of the Court's former judges. The book has a special focus on cases relating to Switzerland. This is the official title: Mark E. Villiger, Handbuch der Europäischen Menschenrechtskonvention (EMRK), mit besonderer Berücksichtigung der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte in Schweizer Fällen (Schulthess Verlag 2020). The book is also available in an electronic version. This is the publisher's abstract:

'Written in German, this completely revised third edition of the Handbook provides an up-to-date and comprehensive presentation of the European Convention and European Court of Human Rights. It offers quick and reliable answers to specific questions about the Convention’s substantial guarantees and the often complex procedures and manifold institutional aspects of the Court. Many cross-references are included to highlight the context, with frequent overviews summarising important principles of the Strasbourg case-law. Publication of the Handbook in 2020 coincides with the 70th anniversary of the Convention, providing readers with an invaluable overall assessment of the world’s most important international human rights court.

The author served for nine years as a judge at the Court, including three years as Section President.'

The Netherlands Lodges Inter-State Complaint Against Russia

As all those following the Strasbourg system know well, the bulk of the work of the European Court of Human Rights is taken up by dealing with individual complaints. By contrast, Inter-State cases are exceedingly rare. Article 33 ECHR provides that any state party can "refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party", but this mechanism is rarely used, as it is considered a very heavy diplomatic step. One could almost say that only states that have extremely and long-standing strained relationships, due for example armed conflicts or large scale violence take such a step.

All the more surprising maybe that yesterday the government of the Kingdom of The Netherlands announced it is bringing an inter-state complaint against the Russian Federation to Strasbourg. The case relates to the downing of flight MH-17 of Malaysia Airlines over Eastern Ukraine during the conflict there, almost exactly six years ago - a tragedy that killed 298 people, the majority of whom were Dutch.

The move can be see in a wider mix of legal procedures that have been ongoing next to diplomatic efforts. The main suspects are currently criminally prosecuted under Dutch law, in absentia, after extensive research into the causes of the crash by the international Joint Investigation Team (JIT). The Netherlands has also, two years ago, together with Australia (another large group of the passengers on board of MH-17 were Australians) formally held Russia accountable under international law. In addition, a large number (380 people) of next-of-kin of those killed have lodged a complaint at the European Court of Human Rights against Russia in 2016 and 2018 about violations of Articles 2, 3, 8 and 13 ECHR, alleging that Russia 'was responsible for the destruction of the plane and for their relatives’ deaths, either directly or indirectly, and failed to investigate the disaster properly or to cooperate with other international investigations.' These joined cases have been communicated to Russia in April 2019. The Netherlands will intervene as a third party in these cases as well. 

Both the inter-state complaint and the third party intervention have been done to support the next of kin, the Dutch government has announced. Russia has always denied any involvement in the shooting down of the plane. The legal battle and the battle for truth will now thus be fought at several levels and in several legal fora. The step also means that other, diplomatic means, were not yielding results.

Russia has called the legal step "another blow" to the Dutch-Russian relationship and interestingly said this legal application "will only lead to further politicization and will complicate the search for the truth" as the New York Times reports. 

For a full overview of the two handfuls of inter-state cases in Strasbourg, see here. One may note that several other inter-state applications against the Russian Federation, lodged by both Ukraine and Georgia, are currently pending.

Here is the full pres release of the Dutch Government:

'Today, the Dutch government decided to bring Russia before the European Court of Human Rights (ECtHR) for its role in the downing of Flight MH17. By submitting an inter-State application, the government is sharing all available and relevant information about the downing of Flight MH17 with the ECtHR. The contents of the inter-State application will also be incorporated into the Netherlands’ intervention in the individual applications submitted by the victims’ next of kin against Russia to the ECtHR. By taking this course of action the government is offering maximum support to these individual cases.

What is more, by submitting this inter-State application, the Netherlands stands by all 298 MH17 victims, of 17 different nationalities, and their next of kin.

‘Achieving justice for 298 victims of the downing of Flight MH17 is and will remain the government’s highest priority,’ said foreign minister Stef Blok. ‘By taking this step today – bringing a case before the ECtHR and thus supporting the applications of the next of kin as much as we can – we are moving closer to this goal.’

The UN Security Council will be notified of this step as well.

The government attaches importance to continuing the meetings with Russia on the matter of state responsibility. The purpose of these meetings is to find a solution that does justice to the enormous suffering and damage cause by the downing of Flight MH17.'

Nearly six years since the downing of Flight MH17, which killed all 298 people on board, the pursuit of truth, justice and accountability remains the top priority for the Dutch government. The government has always said that it would not rule out any legal remedy to achieve this goal. This latest course of action brings us one step closer.'

And with this report, this blog goes on its annual Summer break!

New ECHR Readings

Please find below a new batch of recent ECHR-related publications:

* Aikaterini Tsampi, 'The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?', Netherlands Quarterly of Human Rights, vol. 38(2), pp. 134-155:

'The case-law on Article 18 of the European Convention on Human Rights has been evolving recently in a dramatic fashion. This evolution, which shaped a new doctrine on the misuse of power, focuses on the criminalisation of dissent within a State where undemocratic tendencies arise. The purpose of this article is to highlight these undemocratic tendencies and demonstrate that Article 18 ECHR addresses the systemic deficiencies in the balance of powers within a State. A violation of Article 18 ECHR occurs when the executive branch of government male fide tries to erode the social, political and economic contre-pouvoirs within a State and when the institutional contre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this erosion.'

* Vladislava Stoyanova, ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’, The International Journal of Human Rights, vol. 24(5) 2020, 632:

'This article examines how the common law tort of negligence can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, the common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of the common law certain analytical elements are more thoroughly considered and better articulated. These elements are: the distinction between a duty and a breach of duty; the level of foreseeability of harm; the proximity between the state and the person who has suffered harm; the reasonableness of imposing a duty; the causation between the harm and the alleged omission. Two main arguments emerge from the juxtaposition of the ECHR analysis against the common law. First, by failing to explicitly articulate and distinguish certain analytical elements, the ECHR positive obligation judgments offer little general guidance as to the limits of responsibility. Second, the analytical inquiry applied when adjudicating positive obligations is in tension with the idea of the correlativity between rights and obligations.' 

* Lisa McIntosh Sundstrom, ‘Seeking better judgment: LGBT discrimination cases in Russia and at the European Court of Human Rights’, The International Journal of Human Rights, vol. 24(6) 2020 750:

'Drawing upon data from field interviews, court records, and media and NGO reports, this article examines Russian cases claiming LGBT discrimination in domestic courts and at the European Court of Human Rights (ECtHR). The ECtHR has provided a less homophobic venue than Russia’s domestic courts for such claims, but its judgments have had little effect in Russia. We argue that the Russian case illustrates a paradox in the domestic politics of international human rights litigation. Activists from domestic contexts where discrimination is most prevalent are most likely to make successful claims in international human rights courts, while in those same contexts, informal discriminatory norms are likely to be strongest, resulting in those international court decisions having the least impact on the ground.' 

* M. Lufti Chakim, ‘The margin of appreciation and freedom of religion: assessing standards of the European Court of Human Rights’, The International Journal of Human Rights, vol. 24(6) 2020 850:

'Throughout history, the relationship between religion and State has posed challenges. The issue of religious symbols in the public sphere is an area where the European Court of Human Rights has granted a wide margin of appreciation to States. The main argument is that there is no European consensus on the issue and that national authorities are better positioned to determine when interference with the freedom of religion becomes necessary in a democratic society. However, this argument has evoked criticism that no strong legal reasons or standards have been applied to the doctrine of the margin of appreciation. This article aims to analyse the Court’s standards through an examination of the limits imposed on the doctrine under European supervision. Notwithstanding the controversy over its application, the doctrine does play an essential role in accommodating the diversity of human rights protection in Europe. Therefore, in future judgements, the Court should focus on a proportionality test against the State arguments, which would allow the Court to determine the applicability of the doctrine in the case of freedom of religion.'

* Veronika FikFak, ‘Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state’, Leiden Journal of International Law, vol. 33(2) (2020) 335:  

'This article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.' 

* Thiago Alves Pinto, ‘An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights’, Religion and Human Rights, vol. 15(1-2) (2020) 96:

'Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.'