New Book on Law, Democracy and the ECtHR

Rory O'Connell (Ulster University) has published a new monograph entitled Law, Democracy and the European Court of Human Rights with Cambridge University Press. O'Connell is an esteemed colleague over at the Transitional Justice Institute in Belfast - where I had the pleasure of being a guest researcher in the past - is an expert on the intersection of democracy and the ECHR. This is the book's abstract:

'Law, Democracy and the European Court of Human Rights examines the political rights jurisprudence of the European Court of Human Rights. It discusses how the Court supports a liberal representative and substantive model of democracy, and outlines the potential for the Court to interpret the Convention so as to support more deliberative, participatory and inclusive democratic practices. The book commences with an overview of different theories of democracy and then discusses the origins of the Council of Europe and the Convention and presents the basic principles on the interpretation and application of the Convention. Subsequent chapters explore issues around free expression, free assembly and association, the scope of the electoral rights, the right to vote, the right to run for election and issues about electoral systems. Issues discussed include rights relating to referendums, voting rights for prisoners and non-nationals, trade union rights and freedom of information.

• Discusses the European Convention on Human Rights in the context of democratic theories and will appeal to those interested not just in the black letter of the European Convention law but also wider theoretical debates
• Features a detailed presentation of case law on political and electoral rights that will provide readers with an in-depth understanding of multiple issues relating to the political process as seen through the lens of the European Convention on Human Rights
• Discusses the potential for more deliberative, participatory and inclusive models of democracy'

New Book on Positive Duties to Mobilise Criminal Law under the ECHR

Laurens Lavrysen (Ghent University) and Natasa Mavronicola (Birmingham University) have co-edited the new book Coercive Human Rights.Positive Duties to Mobilise the Criminal Law under the ECHR with Hart Publishing. This is the abstract:

'Traditionally, human rights have protected those facing the sharp edge of the criminal justice system. But over time human rights law has become increasingly infused with duties to mobilise criminal law towards protection and redress for violation of rights. These developments give rise to a whole host of questions concerning the precise parameters of coercive human rights, the rationale(s) that underpin them, and their effects and implications for victims, perpetrators, domestic legal systems, and for the theory and practice of human rights and criminal justice. This collection addresses these questions with a focus on the rich jurisprudence of the European Court of Human Rights (ECtHR). 

The collection explores four interlocking themes surrounding the issue of coercive human rights: 

First, the key threads in the doctrine of the ECtHR on duties to mobilise the criminal law as a means of delivering human rights protection.

Secondly, the factors that contribute to a readiness to demand coercive measures, including discrimination and vulnerability, and other key justificatory reasoning shaping the development of coercive human rights. 

Thirdly, the most pressing challenges for the ECtHR's coercive duties doctrine, including:

- how it relates to theories and rationales of criminalisation and criminal punishment; 

- its implications for the fundamental tenets of human rights law itself;

- its relationship to transitional justice objectives; and 

- how (far) it coheres with the imperative of effective protection for persons in precarious or vulnerable situations.

Fourthly, the (prospective) evolution of the coercive human rights doctrine and its application within national jurisdictions.'

EYHR Call for Contributions: Human Rights in Times of a Pandemic

The European Yearbook on Human Rights (EYHR) has issued a call for contributions for 2021 with a special focus on Human Rights in Times of a Pandemic. Below is the call for contributions as presented by the EYHR:

Large parts of 2020 have been marked by an unprecedented global health crisis with economic, social and humanitarian dimensions that resulted in a severe human rights impact. COVID-19 exposed the weaknesses of public health care systems and the access thereto, prevailing structural inequalities and the fragility of the rule of law in times of emergency. Hate speech, fake news, the targeting of vulnerable groups, nationalism and populism spread alongside the virus and pave the way for the adoption of repressive measures for purposes unrelated to the pandemic. Human Rights appeared as afterthoughts rather than as guiding principles in the political strategies responding to the global pandemic.

The 2021 edition is therefore dedicated to the impact the global pandemic had on human rights protection in Europe and related submissions are welcome. In particular, we encourage submissions on responses by the EU, the CoE and the OSCE to the pandemic from a human rights perspective.

Authors will be invited to submit full contributions based on an abstract (max 500 words) that should be send by 11 December 2020. Abstracts should be submitted with a short bio to lisa.heschl@uni-graz.at. The deadline for submitting the manuscript is end of March 2021.

The Yearbook is edited by representatives of the three major Austrian human rights research, training and teaching institutions – the European Training and Research Centre for Human Rights and Democracy of the University of Graz; the Austrian Human Rights Institute of the University of Salzburg and the Ludwig Boltzmann Institute of Human Rights, Vienna – and the Global Campus of Human Rights, Venice. It is published by Intersentia and all contributions are subject to a double-blind review process.

Shifting Centres of Gravity in Human Rights Protection Now in Paperback

It is my pleasure to announce that the book professor Oddný Mjöll Arnardóttir (University of Iceland) and myself (Utrecht University) co-edited a few years ago, Shifting Centres of Gravity in Human Rights Protection. RethinkingRelations between the ECHR, EU, and National Legal Orders, has now been published in paperback! It focuses on what we then dubbed the shifting gravities of the protection of human rights in the triangle: European Union, European Convention on Human Rights, and national jurisdictions. It includes contributions from a wide range of authors who are experts on one or several of the interlinkages in this human rights triangle. This is the abstract:

'The protection of human rights in Europe is currently at a crossroads. There are competing processes which push and pull the centre of gravity of this protection between the ECHR system in Strasbourg, the EU system in Luxemburg and Brussels, and the national protection of human rights.

This book brings together researchers from the fields of international human rights law, EU law and constitutional law to reflect on the tug-of-war over the positioning of the centre of gravity of human rights protection in Europe. It addresses both the position of the Convention system vis-à-vis the Contracting States, and its positioning with respect to fundamental rights protection in the European Union. The first part of the book focuses on interactions in this triangle from an institutional and constitutional point of view and reflects on how the key actors are trying to define their relationship with one another in a never-ending process. Having thus set the scene, the second part takes a critical look at the tools that have been developed at European level for navigating these complex relationships, in order to identify whether they are capable of responding effectively to the complexities of emerging realities in the triangular relationship between the EHCR, EU law and national law.'

70 Years ECHR Today

Today, it is exactly 70 years ago that a small group of European states adopted, after relatively fast negotiations, a very special document that is now shortly known as the ECHR. In the photo, one can see the Ministers sitting together in the Palazzo Barberini in Rome for the formal meeting of adoption of the Convention. In the seven decades since, not only has Europe completely changed, so too has the number of state parties, the number of substantive rights, the exact process of supervision, the 'socialisation' of the Convention in domestic jurisdictions, and more generally the visibility of the ECHR. What has remained is the still very special idea that people should have their basic rights protected and should have an avenue to have violations redressed, if need be beyond the national level level, guarded by an international court that can issue binding judgments.

With a special meeting of the Committee of Ministers in Athens today (as Greece is currently chairing the Committee) and a number of academic and other events, including a big online conference at Leuven University, this special day is marked and shows the resilience of an ever-changing mechanism of human rights protection. Even in the light of backsliding of democracy. Even in the light over shrinking civic space. Even in the light of a quickly shifting geopolitical context, as the enduring uncertainty about the US selections also shows today. Far beyond the dozen of men sitting around that table in Rome, the Convention is now truly a living instrument, carried by countless women, men, children, stateless people, judges, lawyers, civil society organisations and countless others beyond the diplomats in 1950. 

As editors of the ECHR Blog, we wish the ECHR many more years of remaining a key bulwark of protection against human rights violations. Forward we go!

Guest Post: ‘Hate Speech’ Jurisprudence of the ECtHR through a Qualitative and Quantitative Lens

By Jacob Mchangama, Director, Justitia, Denmark and Natalie Alkiviadou, Senior Research Fellow, Justitia, Denmark

The point at which free speech ends and hate speech begins has become a burning issue in an age of social media, where billions of people have access to share synchronous content on global fora. This has raised concerns over an epidemic of hate speech, with privately owned platforms looking to human rights law for inspiration and legitimisation of their own community standards and terms of service, which typically prohibit hate speech, although definitions vary widely. The concerns have also led both the European Union and European democracies to adopt several measures to counter this phenomenon. Examples include the EU’s Code of Conduct on Illegal Hate Speech which requires companies to remove hate speech within 24 hours of them being reported and the 2017 German Enforcement Act which places pressure on social media companies to remove hate speech at risk of 50 million Euro fines.

In the landmark case of Handyside v. The United Kingdom, the European Court of Human Rights (ECtHR or the Court) underlined that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights protects not only expressions that are favourably received but also those that ‘offend, shock or disturb.’ Despite this apparently robust protection of free speech, the Court has since developed a substantial body of case-law permitting (and even requiring) restrictions of ‘hate speech,’ which it has conceptualized as including even offensive speech. It has done so without properly defining or convincingly demonstrating the need to restrict this category of speech. The Court has allowed for criminal penalties on youngsters sharing out homophobic leaflets in a high school, a Belgian politician handing out Islamophobic leaflets, a German citizen comparing a local government official to Heinrich Himmler and has often used Article 17 (the non-destruction clause) in cases involving negationism or revisionism of the Holocaust.

In light of the above and within the framework of the Future of Free Speech project run by Justitia in collaboration with Columbia University’s Global Freedom of Expression project and Aarhus University’s Department of Political Science, we set out to look at the extent to which the Handyside decision and particularly the benchmarks of shock, offence and disturbance have been been upheld within the framework of hate speech. To this end, we analysed 60 cases decided by the ECtHR and the European Commission of Human Rights’ between 1979-2020. 57 of those cases were brought by the utterers under Article 10, and 3 by the victims of the alleged hate speech under Articles 8 and 14. Cases concern speech linked to homophobia and transphobia, ethnic hatred, religious hatred, violence, totalitarianism and genocide denial. Our analysis reveals that 61% of cases brought by the utterers resulted in the applicant’s loss through a finding of non-violation of Article 10 (21%) or due to the inadmissibility of decisions in 41% of cases (for example through the use of Article 17 in Holocaust denial cases) Only 39% of cases brought by the utterers have resulted in a finding in favour of the applicant. Thus, on average, free speech restrictions have been upheld in just over one out of three hate speech cases. Many of the cases decided by the ECtHR involve statements that deserve moral condemnation from both civil society and governments as well as moral support to the affected minority groups. The response does not necessarily have to include legislative (particularly criminal) penalties, as repeated time and again by the European Commission against Racism and Intolerance and by the United Nations. At the same time, a plethora of free speech cases have gone amiss due to the Court’s approach. A good example is that of Nix v Germany. where the Court rejected the application of a German blogger who posted a picture of Himmler wearing a swastika armband and likened him to the officers of the employment office and the alleged discriminatory treatment his daughter (and many other youngsters) were receiving from them. 

Quantitative and Qualitative Compilation of Findings  

We have compiled our findings into an interactive online database. This allows users to view the cases thematically but also per country. A short overview of each case as well as link to the original judgment is available for easy access and reading. It must be noted that translations from judgements originally in French are our own.  We will be adding to the database as new cases come about and welcome anyone to contact us if they consider that a case has been missed out.

Hate Speech: Semantics and Notions 

As such, the first points to note are that the term ‘hate speech’ is not essentially defined by the ECtHR and there is a variation of thresholds attached thereto. The Court’s references made to hate speech are generic, offering no substantial definition of this form of speech. The closest we have come to a conceptual understanding of hate speech has been Lilliendahl v Iceland (2020). This case involved comments made under an online article by a citizen regarding a proposal to strengthen education and counselling in schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender. 

This was the first time that the Court posed the direct question of whether the speech amounted to hate speech within the meaning of the Court’s case-law. To answer this, the Court set out an explanation of hate speech based on its previous jurisprudence, adopting a hierarchal categorisation, rather than assessing the substance of what can actually fall within the framework of hate speech. The fact that no previous case had actually provided a definition of hate speech did not help the Court in this exercise. It found that hate speech falls into two categories. The first is the ‘gravest forms of hate speech’ that are excluded from any protection through Article 17 (with no definition of what constitutes the ´gravest forms of hate speech´). The second is the ‘less grave forms of hate speech’ which do not fall outside Article 10 but which the Court ‘has considered permissible for the Contracting States to restrict.’ Here, the Court incorporated not only calls for violence or other criminal acts but also insults, ridicule and slander in order to combat ‘prejudicial speech within the context of permitted restrictions on freedom of expression.’ It makes no further elaboration of what this context of permitted restriction may be, something which would have been expected given the fundamental nature of free speech in addition to the very low threshold attached to, for example, insult or ridicule.  

Despite the fact that the term ‘hate speech’ is included in over twenty of the cases examined, with some being from the end of the 90’s, the Court waited until 2020 to establish the above tiers and extrapolation of the term (albeit without too much nuance).  This 2020 positioning demonstrates that the threshold of the ECtHR is in fact low since insults can be prohibited, whilst the reference to ‘prejudicial’ speech is also indicative of this. Illustrative of the low-thresholds but also of the inconsistent position of the Court to hate speech are the differential treatment in Ibragim Ibragimov and Others v Russia (2018) on the one hand and Atamanchuk v Russia (2020) on the other. The former involved the banning of Muslim scholar Said Nrusi’s book, due to allegations that is was extremist literature. Here, the ECtHR held that, since the book depicted a moderate, non-violent, understanding of Islam, the restriction to speech was not legitimate. It noted that: 

‘merely because a remark may be perceived as offensive or insulting by particular individuals or groups does not mean that it constitutes “hate speech.” Whilst such sentiments are understandable, they alone cannot set the limits of freedom of expression.’

In Atamanchuk v Russia (2020), which involved an application made by a journalist/politician after he was convicted of making statements against non-Russians, referring to them as criminals (without making any calls for violence), the Court found that:

‘inciting hatred does not necessarily involve an explicit call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating xenophobic or otherwise discriminatory speech in the face of freedom of expression exercised in an irresponsible manner.’ 

 

This threshold is rather broad since it incorporates even the mere justification of hatred and the encapsulation of insults in the ambit of an attack. This is far from the threshold from the international ‘hate speech clause’ namely Article 20(2) of ICCPR which prohibits advocacy for national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

Thus, in the former case, mere insult was not sufficient to prohibit speech whereas in the latter, not only could insult be prohibited, but it was also incorporated in the framework of inciting hatred, without the nexus between insult and hatred being defined by the Court. The differential element of the cases was that in the latter, speech was directed against a particular group characterised by a particular characteristic (ethnicity).

As such, although the Court notes that it may be considered necessary in certain democratic societies to limit some forms of expression, it has yet to provide a coherent legal and/or normative extrapolation of when/where/how these limitations can or should occur. This has resulted in certain anomalies vis-à-vis the treatment of similar cases as demonstrated above. To this end, a proper definitional framework is of utmost importance as well as a coherent set of thresholds. 

A coherent conceptualisation of hate speech by the ECtHR is a necessity since, without this, delineations between acceptable and unacceptable speech cannot be discerned. This is even more pressing in the absence of a Council of Europe equivalent to the Rabat Plan of Action which sets out strict thresholds for hate speech. One of the central objectives of this Plan is to provide for a comprehensive assessment of the state of implementation of the prohibition of incitement in conformity with international human rights law through a robust threshold. 

It is imperative to highlight that hatred should be tackled for the purpose of ensuring just and equal liberal democracies. At the same time, a very central tenet of such a democracy is the fundamental nature of free speech. Whilst the ECtHR’s restrictive approach has arisen from the good (yet paternalistic) intentions of the ECtHR to protect groups perceived vulnerable to hatred, the handling of the manner, at the expense of Article 10 has been unconvincing and confusing. Moreover, nowhere in the Court’s judgment has there been any openness to explore the potential negative side effects that speech restrictions may have on the minorities they try to protect nor on the possible  positive correlation between speech restrictions and violence, as suggested by empirical research.

Conclusion

In light of the above qualitative and quantitative findings, we argue that the ECtHR adopts  an overly-restrictive approach in the ambit of hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law which leaves European citizens and States at a loss on how to properly delineate the limits of hate speech.

Online Conference: The European Convention on Human Rights at 70

On 4 November 2020, KU Leuven in cooperation with AHRI is organizing an online conference entitled The European Convention on Human Rights at 70: Achievements, Challenges and Interactions with Legal Orders. The conference will have four panels. The first one will look at the achievements of and challenges for the ECHR. The other three panels will explore the relationship between the ECHR on the one hand and the national, EU and public international law on the other hand. Judge Paul Lemmens of the European Court of Human Rights will give a keynote on whether the European Court is ready for the next 70 years. For registration click here.

 

Full programme is available here:

 

09:30 - 09:45 | Welcome and Introduction to the Conference

Prof. Dr. Wouter Devroe, Dean of the Faculty of Law, KU Leuven

Prof. Dr. Jan Wouters, Full Professor of International Law, Director, Leuven Centre for Global Governance Studies - Institute for International Law, KU Leuven

 

09:45 - 11:15 | Panel 1: Achievements of, and Challenges for, the ECHR 

Moderator: Prof. Dr. Koen Lemmens, Professor of Human Rights Law, KU Leuven

 

Achievements of, and Challenges for, the ECHR: a Critical Appraisal 

Prof. Dr. Paolo Di Stefani, Professor in International Human Rights Law, University of Padova

 

The Past and Future of the Role of Civil Society in the ECHR System

Prof. Dr. Antoine Buyse, Full Professor of Human Rights at Utrecht University and Director of the Netherlands Institute of Human Rights (SIM)

 

Integrating the European Social Charter and the ECHR: a New and Necessary Challenge in the COVID Age?

Prof. Dr. Jeff Kenner,  Chair of European Law, Human Rights Law Centre, University of Nottingham

 

Questions and Debate

 

11:15 - 12:45 | Panel 2: The ECHR and National (Constitutional) Legal Orders  

Moderator: Prof. Dr. Stephan Sottiaux, KU Leuven 

 

Procedural Rationality in Times of Authoritarian Regimes

Prof. Dr. Catherine Van de Heyning, Professor European Fundamental Rights Law, University of Antwerp

 

The Dialogue between the European Court of Human Rights and Domestic Constitutional Courts: the Belgian Example

Mr. Willem Verrijdt, Law Clerk (Referendaris) at the Belgian Constitutional Court, Affiliated researcher at the Leuven Centre for Public Law, KU Leuven

 

Navigating between Uniform Protection and Respect for National Diversity – The ECtHR’s Eternal Struggle

Prof. Dr. Janneke Gerards, Professor of Fundamental Rights Law, Utrecht University

 

Questions and Debate

 

Lunch Break

 

13:30 - 14:15 |  Keynote: The ECHR and European Court of Human Rights:                                      Ready for the Next 70 Years?

Moderator: Prof. Dr. Stephan Parmentier, KU Leuven

 

Prof. Dr. Paul Lemmens, Judge in the European Court of Human Rights, Professor Emeritus KU Leuven

 

14:15 - 15:45 | Panel 3:  The Convention and International Law

Moderator: Prof. Dr. Gleider Hernández, Professor of Public International Law, KU Leuven and Open University

 

The ECHR and Security Council Targeted Sanctions

Dr. Kushtrim Istrefi, Assistant Professor of Human Rights Law and Public International Law, Netherlands Institute of Human Rights (SIM), Utrecht University

 

The European Court of Human Rights and the Attribution Rules of the International Law

Commission: Reflections on Some Currently Pending Cases

Prof. Dr. Marko Milanovic, Professor of Public International Law, University of Nottingham

 

The European Court of Human Rights’ Margin of Appreciation and Judicial Deference: Some Reflections

Dr. Andrew Legg, Barrister, Essex Court Chambers

 

Climate Change and the European Court of Human Rights: the Portuguese Youth Case Mr Gerry Liston, Legal Officer, Global Legal Action Network

 

Questions and Debate

 

16:00 - 17:30 | Panel 4: The Convention and the European Union

Moderator: Prof. Dr. Elise Muir, Professor of EU Law, Director of the Institute for European Law, KU Leuven

 

Litigating Fundamental Rights at the European Court of Human Rights and the Court of Justice of the EU : Some Views From a Practitioner

Ms. Markella Papadouli, AIRE Centre’s Europe Litigation Coordinator and Lecturer in International and European Refugee Law at London South Bank University 

 

The Principle of Mutual Trust and the European Convention of Human Rights: A Path Towards Harmony?

Dr. Cécilia Rizcallah, Visiting professor at the Université Saint-Louis Bruxelles, Lecturer at the Université Libre de Bruxelles and Postdoctoral Researcher at the National Fund for Scientific Research (F.R.S.-FNRS)

 

The Future of EU Human Rights Law: Is Accession to the ECHR Still Desirable? Prof. Dr. Tobias Lock, Professor of Law at Maynooth University

 

Questions and Debate

 

 

ECHR Articles in Newest HRLR

The September 2020 issue of the Human Rights Law Review (vol. 20, issue 3) has now been put online. These are the ECHR-related articles:

* Mathieu Leloup, 'The Concept of Structural Human Rights in the European Convention on Human Rights':

'This article introduces the concept of structural human rights in the context of the European Convention on Human Rights. It starts from the observation that the current understanding of human rights obligations does not account for all the effects that the judgments of the European Court of Human Rights have in practice. To comply with their obligations under the Convention, States Parties may be required to modify their very institutional architecture. The article argues that this is a consequence of structural human rights. These are fundamental rights that, when enforced, may impose structural obligations, requiring changes to a State's governmental structure. The article offers a theoretical underpinning of the concept and indicates the benefits of understanding Convention rights also in a structural way. Furthermore, the notion is conceptualised further by way of an overview of several strands of case law, demonstrating the way in which Convention rights can develop their structural nature and what kind of structural effects they may have.'

* Daley J. Birkett, 'Asset Freezing at the European and Inter-American Courts of Human Rights: Lessons for the International Criminal Court, the United Nations Security Council and States':

'This article examines the human rights implications of the asset freezing processes available to the International Criminal Court and the United Nations Security Council. It does so through the lens of the case law of the European Court of Human Rights and the Inter-American Court of Human Rights, from whose jurisprudence, although not uniform, a number of principles can be distilled. By scrutinising a series of cases decided under the European Convention on Human Rights and American Convention on Human Rights, respectively, the article demonstrates that the rights to the peaceful enjoyment of property and to respect for one’s private and family life, home and correspondence are necessarily implicated by the execution of asset freezing measures in criminal and administrative contexts. The article concludes that, considering the human rights constraints placed on the exercise of their powers, both the International Criminal Court and United Nations Security Council, as well as States acting at their request, must pay attention to this case law with a view to respecting the human rights of those to whom asset freezing measures are applied.'

* Ergul Celiksoy, 'Execution of the Judgments of the European Court of Human Rights in Prisoners’ Right to Vote Cases':

'This article examines the responses from Austria, Georgia, Romania, Russia, the UK and Turkey to the Court’s rulings on prisoners’ right to vote and discusses whether or not they have complied with them, as recognised by the Committee of Ministers. To this end, it first provides a brief overview of prisoners’ right to vote under the ECtHR’s jurisprudence. Thereafter, it explores what reforms have been made by these six countries in order to execute the ECtHR’s judgments in prisoners’ right to vote cases and discusses whether these reforms can be considered sufficient to satisfy the ECtHR’s criteria with which they must comply. It concludes that the closures of prisoners’ voting rights cases concerning Austria, Georgia and Romania are positive since they have effectively executed the Court’s judgments in their domestic jurisdictions. However, the article argues that the Committee of Ministers has erred in closing its examination of prisoners’ right to vote cases against Russia, the UK and Turkey, because the structural problems of prisoners’ disenfranchisement have not been solved in these countries due to the retention of disproportionate restrictions imposed on convicted prisoners’ voting rights.'

Online Conference on Covid-19 and the European Convention on Human Rights

On 16 and 17 October 2020 there will be an online conference on Covid-19 and the European Convention on Human Rights. Speakers include a long list of sitting and former judges of the European Court of Human Rights, the Council of Europe Commissioner for Human Rights and academics working on the Convention system. The full agenda is available online. The registration link is here. The event will be translated live in Albanian, Bosnian, Croatian, Montenegrin, Serbian and Macedonian. 

The conference is part of the Seventh Regional Rule of Law Forum for South-East Europe and is hosted by Civil Rights Defenders and The Advice on Individual Rights in Europe (AIRE). 

Below is the description of the conference by the organisers:

‘The Covid-19 pandemic is one of the greatest global crises since World War II. Governments all over the world have taken unprecedented measures to deal with the challenges posed by the pandemic and to limit the dangers posed to life and health. It is also the first time in the history of the Convention that many Member States have been affected concurrently by the same exceptional crisis situation, and by one which affects so many Convention rights. 

The pandemic has engaged States’ positive obligations to protect life and health, whilst the measures such as lockdowns which were implemented to try to contain the pandemic and protect health have interfered with numerous other Convention rights. For example, the closure of courts, schools, places of worship and hospitality venues has raised issues under the right to a fair trial, education, freedom of religion and peaceful enjoyment of property, whilst restrictions on movement and gatherings interfered with the rights to freedom of movement, expression, association and free elections.  

Clearly, the Covid-19 pandemic raises novel legal questions and new challenges regarding how to balance the multiple rights at stake. There is, therefore, no doubt that a range of Convention rights cases related to the pandemic will soon land on the desks of national and international judges. As the nature and impact of the pandemic continues to evolve, it is also likely that judicial responses to these questions will help to shape States’ responses to the pandemic going forward. It is therefore essential that those dealing with questions relating to the pandemic understand what the ECHR requires of Member States in such a context. Not only will this help to ensure a human rights compliant response to the Covid-19 pandemic, it will also impact on the development of longer-lasting human rights norms in the field of public health and help to condition the effectiveness of human rights law in emergency situations for the foreseeable future. An understanding of existing, relevant ECtHR case law can help provide the keys to overcome new challenges and provide a useful framework within which to address new legal questions. 

The Forum will provide an opportunity to reflect on how existing ECtHR case law may be applied to the novel legal questions and factual situations which have arisen in the context of the pandemic. It will bring together experts in the field to discuss the extent of the positive obligations which Member States might be under, and when exactly such obligations might arise. The Forum will also facilitate conversation regarding the main threats to human rights which have arisen in the context of the pandemic and provide an opportunity for participants to share their insights into best practice solutions to these challenges based on their experience dealing with the pandemic so far. As always, the Forum will encourage collaboration between participants to develop solutions on how to manage the challenges which they continue to face and/or which may arise in the future.'

Guest Post: Negotiations on EU Accession to the ECHR Restart after Five Years: Between Unlikely and Doable

By Dr. Fisnik Korenica, assistant professor of Constitutional Law and Human Rights at University of Prishtina and Co-Founder of the Group for Legal and Political Studies. He is author of the monograph The EU’s Accession to the ECHR, Springer 2015. 

The accession of the European Union (EU) to the European Convention on Human Rights (ECHR) has been a heated debate for a long time. Academic and political motives have led several authors to write about this development from a number of perspectives. A significant amount of literature has attracted the interest of lawyers on numerous characteristics of the mechanics of accession. 

A Council of Europe working group (WG) has just recently restarted the negotiation process on a new draft agreement on EU’s accession to the ECHR. One must recall that although the project of accession has been discussed for several decades, a final draft accession agreement was only finalized in April 2013. It was envisaged as a shared agreement that tackled the concerns raised by EU member states around the withdrawal of sovereign competencies. The design of the agreement met with various criticisms, the vast majority of them relating to concerns over the external and internal autonomy of EU law. A co-respondent mechanism, namely a tool for joint attribution of responsibility between the EU and its member states, was designed to bridge this gap whenever a violation of the ECHR would originate in an action or omission of the national authorities authorized or mandated by EU law (but not only). The draft agreement also envisaged inter-party complaints and did not bar the EU from acceding to future protocols of the ECHR, such as Protocol 16. 

In December 2014, the story of the draft accession agreement was brought to a sudden halt by Opinion 2/13 of the Court of Justice of the EU (CJEU). The CJEU found several aspects of the draft agreement problematic from the perspective of EU law. The CJEU concluded that certain aspects such as the possibility of the EU to accede to Protocol 16, the blurred relationship between Art. 53 Charter of Fundamental Rights and Art. 53 ECHR, the equal treatment of the EU as a respondent hand in hand with member states, the controversial relationship between Art. 344 TFEU and the inter-party mechanism foreseen in the draft agreement, the prior involvement mechanism, the co-respondent mechanism, etc., were altogether incompatible with EU treaties. Considering that such problematic traits were too heavy to be addressed by the negotiating teams, no solution was seemed in sight. And indeed the process had been stalled until very recently.

The Steering Committee for Human Rights (CDDH) ad hoc negotiation group restarted its negotiations in September 2020, meeting for the first time since a final draft agreement was concluded in 2013. It is convened with the understanding that a new negotiation process that addresses the concerns of Opinion 2/13 should take place. One can speculate that the motive after the call from the European Commission (EC) to restart negotiation of a new draft agreement at this point in time is impacted by the credibility losses which the EU faced after Brexit. The EC seemingly sees the accession project as a gain for EU’s strategic action in international fora. The Secretary General of the Council of Europe, Ms. Pejčinović Burić, and the EC's Vice President for Values and Transparency, Ms. Jourová, indicated on this occasion that:

‘[ECHR] represents everything that the Council of Europe and the European Union stand for. In these difficult times, the resumption of these crucial negotiations sends a strong signal about the commitment of our two organisations, and our member states, to the fundamental values that we cherish. We very much hope that the negotiations can be brought to a speedy and successful conclusion for the benefit of Europe as a whole.’

The decision to reconvene followed the request by the EC and the Committee of Ministers of the Council of Europe to set new terms of reference for the new negotiation process in 2020. The first meeting of the WG was held between 29 September and 2 October 2020, where numerous technical issues were discussed. A major point of consideration was the ‘Paper to structure the discussion at the 6^th negotiation meeting’, which set a framework for the new negotiating process. The document was not released to the public, yet transcripts of the meeting reveal the main points it raised: namely, the four categories of issues noted in the paragraph below. The Paper, however, does not offer anything substantial in regards to solutions that would resolve the existing controversy surrounding the reasonableness of the accession project and the far-reaching requirements following from Opinion 2/13. It merely underlines what Opinion 2/13 had concluded, indicating aspects for which a new negotiation and/or design would have to be engineered.

Four additional major issues were discussed in the first meeting of the WG. First, general issues of EU-specific mechanisms for the procedure before the European Court of Human Rights (ECtHR); second, the inter-party mechanism and the possibility for domestic judges to ask for an advisory opinion under Protocol 16 ECHR; third, the principle of mutual trust between EU member states in the view of Art. 53 Charter of Fundamental Rights of the EU and Art. 53 ECHR; and, fourth, the jurisdictional immunity of the area of Common Foreign and Security Policy in procedures before the ECtHR. The European Commission reiterated that it does not require a privileged status for the EU in proceedings before the ECtHR. However, it maintained that some accents would have to be enhanced in the draft agreement for it to comply with Opinion 2/13. It further ‘recalled its determination to accede to the ECHR. It recalled that accession did not require to negotiate a new Accession Agreement, but rather to make some specific amendments to the already existing agreement whilst preserving its underlying balance.’ There is no specific information on the elements that would manifest these new requirements. One can assume that baseline documents will not be provided unless there is a new final draft agreement approved by the WG.

Commenting the future of this endeavour, Mr. Giakoumopoulos, the Director General of Human Rights and Rule of Law at the Council of Europe, stated that:

‘[a] revised Accession Agreement will naturally have to be regarded as a compromise package which eventually must be acceptable to all negotiation partners. Indeed, this is a matter of great political importance for today’s Europe. A strong political support in all European capitals will be, therefore, the key to deliver.’

A follow-up meeting of the WG is set for 24-27 November 2020, and there is no draft agenda available as of now.

One can observe that the first meeting of the WG was followed with a positive attitude towards the utilitarian necessity for a new draft agreement. Parties were generally open for a new negotiation process and maintained the need for further consensus to make the project of accession possible. However, little to no discussion that substantively engaged with the core questions of Opinion 2/13 and their plausibility in the light of a new draft agreement took place. It is difficult to estimate whether a proper new negotiation process will succeed. Chances are really slim that the far-reaching requirements of Opinion 2/13 would ever be consented by the 47+1 members of the WG. It is even more unlikely that, even if there is a consensus among negotiators, a draft agreement reflecting that momentum would ever have the support of all national legislatures in the ratification process. However, the November meeting of the WG will inform us more on the substance and will shed more light on the likelihood for success of this restarted negotiating process.