New ECHR Readings

Please find below a selection of new ECHR-related readings of the past few months:

* Jacob Mchangama, Natalie Alkiviadou, ‘Hate Speech and the European Court of Human Rights: Whatever Happened to the Right to Offend, Shock or Disturb?’, Human Rights Law Review, 2021, Vol. 21, Issue 4, p. 1008–1042:

‘In Handyside v. The United Kingdom, the European Court of Human Rights (ECHR) held 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 favorably received but also those that ‘offend, shock or disturb’. 1 Yet, the Court has since developed a substantial body of inconsistent case-law allowing restrictions on ‘hate speech’ that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR. Against a qualitative and quantitative backdrop, the authors argue that the Court and previously the Commission, have adopted an overly restrictive approach to 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. Instead, jurisdictions that recognize a need to balance the freedom of expression with limits on hate speech have adopted more convincing approaches of hate speech, providing a robust protection of free speech while leaving room for the State to curtail the most extreme forms of non-violent hate speech.’

● Oktawian Nawrot, Justyna Nawrot & Valeri Vachev, ‘The right to healthcare during the covid-19 pandemic under the European Convention on human rights’, International Journal of Human Rights, January 2022:

‘The article presents the challenges exposed by the COVID-19 pandemic from a European perspective, especially its consequences in light of the European Convention on Human Rights' (ECHR) guarantees of the right to health. It is the first attempt to comprehensively examine these challenges for the State Parties of the ECHR. The right to health has traditionally been included in the second generation of human rights; therefore, presumably, it does not in itself give rise to any specific rights for an individual. However, the European Court on Human Rights (ECtHR) has recently been linking the right to health with specific provisions of the European Convention on Human Rights, in particular with Articles 2, 3, and 8. We analyse the Court's relevant rulings and their possible consequences for the assessment of the actions taken by the States Parties in order to fight COVID-19, with special emphasis on possible State responsibility for violating the Convention. This can happen when the State's actions result in different levels of health care access available to different groups of patients (patients with COVID-19 and patients with other conditions). The analysis reveals the weakness of the approach taken by ECtHR in the face of the COVID-19 pandemic.’

* Helen Keller, Corina Heri, Réka Piskóty, ‘Something Ventured, Nothing Gained?—Remedies before the ECtHR and Their Potential for Climate Change Cases’, Human Rights Law Review, 2022, Volume 22, Issue 1:

‘The European Court of Human Rights stands before what may be its greatest challenge: addressing current and impending human rights violations stemming from climate change. As the first climate cases trickle into the Court’s docket, and speculation about the Court’s response grows, many questions remain to be answered. Perhaps the matter of greatest uncertainty relates to the type and degree of redress that the Court can offer in this context. This article argues that the Court’s often deferential, inconsistent and unreasoned remedial practice is in urgent need of overhaul. It studies the Court’s remedial practice in environmental cases to draw conclusions about the Court’s existing approach to remedies and its self-perception in this context, i.e. its own understanding of the possibilities and limitations of its role. From this, it extrapolates the remedial approaches that could potentially be taken in climate cases, and discusses the advantages and disadvantages of each one.’

* Nikos Vogiatzis, ‘Interpreting the Right to Interpretation under Article 6(3)(e) ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights?’, Human Rights Law Review, 2022, Volume 22, Issue 1:

‘This article explores how the European Court of Human Rights has interpreted the right to interpretation under Article 6(3)(e) ECHR—a topic which, despite its significance for the rule of law and access to justice, has received, to date, very limited scholarly attention. The key finding is that we are witnessing a ‘cautious evolution’: the Court has progressively—yet simultaneously cautiously—developed the standards and guarantees of this right, which is one of the rights of defence under Article 6(3) ECHR and a requirement of the fair trial. The analysis focuses, in particular, on (i) how general interpretative techniques that have been developed by the Strasbourg Court were applied by the Court in its jurisprudence concerning the said provision; (ii) on the interplay between the overall fairness of the trial and Article 6(3)(e) ECHR; and (iii) on Article 6(3)(e) ECHR and the relationship between legal assistance/legal aid and the right to interpretation. In addition, the article identifies possible areas of further development of this right.’

* Daniel Toda Castán has published the monograph "The Respondent State Shall": International Human Rights Courts increasing their influence on the execution of their own judgments, with Global Law Press (2021). Based on a PhD defended in Speyer, Germany, the book is based on a survey and analysis of over 500 judgments of the European Court of Human Rights, focusing on the Court's indications to states of measures of execution of the judgments. It also compares this with the African and Inter-American systems.

What Would Russia’s Departure from the Council of Europe Mean for the Strasbourg System of Human Rights Protection?

By Kanstantsin Dzehtsiarou, University of Liverpool. 

On 10 March 2022, the authorities of the Russian Federation informed that they are not going to participate in the Council of Europe any longer. The exact legal consequences of this statement are unclear but it is highly likely that the Council of Europe will soon not be any longer between Reykjavik and Vladivostok. It is open for a debate whether there will be a cooling off period before the termination of membership provided for by Article 7 of the Statute of the Council of Europe. Article 7 provides for a period of time between the indication of the intention to withdraw and the termination of membership which can be between 3 and 15 months depending on when such indication is made. Such cooling off period would normally take place between the indication of the intention to withdraw and the termination of membership. However, I would argue that in case of expulsion the cooling off period should not apply. This period is designed to facilitate a Brexit type situation when a state decides to withdraw and both sides need to prepare for such departure with minimal damage. Ruxit is of a different nature, Russia was suspended as a result of aggression and gross violations of the values and principles of the organisation. No cooling off period seems appropriate in this situation and the termination of membership should be imminent.

This imminent departure which will very likely happen within weeks will have significant impact on the European Convention on Human Rights (ECHR) system. Russia is by far the biggest ‘client’ of the European Court of Human Rights (ECtHR). In 2021, the Court delivered 21% of its judgments against Russia which is only one of 47 contracting parties to the ECHR. In the following short note, I will try to consider what is going to happen with the ECtHR with the eventual departure of Russia.

New applications against Russia

According to Article 58 ECHR the state which departs from the Council of Europe also ceases to be a Party to the Convention. So, as soon as the membership of Russia is terminated, the ECtHR will have no jurisdiction over the territory of Russia as well as on other territories under its effective control (for example, Transdniestria in Moldova). The Court will declare inadmissible all applications that complain against violations that have taken place after the termination of membership. Technically some admissible applications can reach the Court years after the moment of termination. For example, if the act of torture happened today, the applicant will have to exhaust all domestic remedies in Russia and then apply to the Court. Even if the violation happened on 11 March 2022, the application itself might have to be submitted years from now. Pursuant to Article 8 of the Statute of the Council of Europe, this precise moment of termination of membership will be determined by Committee of Ministers.

The fate of new applications submitted after the termination of membership is pretty clear and uncontroversial although unfortunate for the victims of human rights violations both in Russia and on the territories under their effective control. Of course, the citizens of Russia will still be able to bring complaints before the Court if their rights are allegedly violated by any of 46 remaining Contracting Parties to the Convention.

Pending applications

Currently there are 13,645 pending applications against Russia. There is more than a dozen of inter-state applications most of them were brought by Ukraine after the conflict with Russia in 2014. According to Article 58 ECHR the departure from the Convention does not release a member state from the obligations under the Convention. So, all applications submitted against Russia before the termination of membership can be considered by the Court and judgments can be delivered. However, a few practical issues will remain in the event of Russia’s departure from the Council of Europe in a non-amicable way (which seem more likely). First and foremost, what is the value of these judgments. Some major inter-state cases might have some symbolic value but hundreds of although personally significant but trivial violations will have no impact on the country which is outside of the Council of Europe. It is almost certain that the Russian Federation will stop all diplomatic collaboration with the Council and the judgments would not be executed. Second, there are a few more technical issues. The judge elected in respect of Russia will have to sit in all Chamber and Grand Chamber cases in which Russia is a respondent state. Arguably, after the denunciation of the Convention the Russian judge will depart from Strasbourg. The current judge might be able to act as an ad hoc judge for the Russian cases but it can be politically inappropriate. Appointing of any other ad hoc judge although not strictly speaking against the wording of the ECHR but probably against its spirit. Here, the Court would have to improvise which might be problematic from the point of view of legitimacy of the Court. Thirdly, the respondent state authorities are active participants in the proceedings in Strasbourg – the governments are expected to submit their explanations to the alleged violations, at least to some extent the process is adversarial. It is very hard to suggest that the Russian authorities will collaborate with the ECtHR in any shape or form. The absence of the Russian government would undermine the legitimacy of judgments delivered against Russia.

So, what can be done? The Court cannot declare all pending cases against Russia inadmissible as Article 58 clearly prevents it from doing that. I see two main ways of dealing with these cases or some combination between these two. First and most likely, the Court will freeze all the pending Russian cases until better times. If Russia decides to reapply it might be conditional for its readmission to swiftly deal with all pending applications. This would make much less sense if Russia reapplies in 40-50 years but if the change of hearts happens within a decade – that might be appropriate. The main significant drawback here is that plenty of applicants will be left in a limbo with pending cases but without any judicial determination. Second, the Court would improvise and continue dealing with the cases from Russia. The Contracting Parties can even draft changes to the Convention to accommodate this complex situation and ensure that the lack of collaboration and absence of the national judge do not obstruct the Court’s proceedings. This is problematic as this process will undoubtedly be consuming a lot of Court’s resources when funding is likely to be reduced. Moreover, if the Russian authorities bother to comment at all they would argue that these trials in absentia would undermine the fair trial standards. Finally, the Court would be delivering judgments which have no impact on the perpetrator.

As I mentioned, the Court might choose to resort to a combination of these two approaches. For instance, the Court might get rid of clearly inadmissible applications – the participation of the national judge is not necessary in these cases and there will be plenty of Russian lawyers in the Court’s Registry during the transition who can deal with these cases. The Court might want to deal with inter-state cases as a symbolic gesture and freeze all other individual applications.

Execution of judgments

There are about 2000 judgments pending execution by the Russian Federation. It is unlikely to expect that the Russian authorities will continue collaboration with the Committee of Ministers regarding execution of said judgments. So, neither monetary compensation nor other individual and general measures will be enforced. The Committee of Ministers generally has very little power to implement the judgment but this power is reduced to zero if the state is outside the Council of Europe. Here, the Committee will have to either completely stop execution of all cases or freeze them. The latter is much more likely.

Personnel

There are plenty of Russian lawyers who work at the ECtHR registry. Some of them are on temporary contracts, so they will not be extended but there is a vast number of lawyers from Russia who work on a permanent basis in Strasbourg. These permanently contracted lawyers who are only citizens of Russia will probably be let go because only citizens of the member states can be employed by the Council. However, there is a proportion of lawyers who have dual citizenship. In their respect a specific decision must be taken. It is possible to argue that they will have to leave the Court after a transitional period due to the significant restructuring of the Court however this will have to be decided by the statutory bodies of the Council.

Conclusion

There is very little point beyond merely symbolic for the ECtHR to continue dealing with Russian cases. Its impact on the departed country will be extremely limited. This will help the Court to sort out its old problem of backlog but this is not an optimal solution at all. I have argued elsewhere that suspension of Russia from the Council of Europe is a correct solution in the circumstances but this does not come without a cost. This cost is inability to protect victims of human rights in Russia. Having said that, Russia can re-join the Council. In the 60-s it took Greece four years to return, I hope that Russia will take even less. 

*I am grateful to Drs Andrew Forde and Kushtrim Istrefi for their insightful comments on the earlier draft of this comment. All errors are mine.

Interim Measure for Russia's Last Free Media: Novaya Gazeta

In a very exceptional move, yesterday - the very day the Russian Federation announced it would take steps to cease participation in the Council of Europe (see our post here) - the European Court of Human Rights announced it had earlier in the week issued the following to the Russian Federation as an urgent interim measure: 

"to abstain until further notice from actions and decisions aimed at full blocking and termination of the activities of Novaya Gazeta, and from other actions that in the current circumstances could deprive Novaya Gazeta of the enjoyment of its rights guaranteed by Article 10 of the Convention (freedom of expression)."

The measure was indicated in the context of the already pending case of ANO RID Novaya Gazeta and Others v. Russia (application no. 11884/22). The case includes four applicants: newspaper Novaya Gazeta, widely regarded as Russia's last truly independent large newspaper and television company OOO Telekanal Dozhd, also seen as one of the other remaining independent news outlets, and two individuals Dmitriy Andreyevich Muratov and Natalya Vladimirovna Sindeyeva. Muratov is the editor of Novaya Gazeta and received last year's Nobel Peace Prize. Sindeyeva is the owner of Telekanal Dozhd.

In terms of speed, one may note that the request for an interim measure was made by Muratov on 3 March and on 8 March, so five days later, the Chamber of the Court to which the case had been allocated met and decided to indicate this interim measure. Thus, one may note that this took a bit longer than usual with interim measures, which are in individual cases of impending expulsion or extradition often issued with. 48 hours. This may have to do with the novelty of the context. As far as I am aware, this is the first time they are applied to press freedom and a media outlet. As is known, the Court can indicate interim measures under Rule 39 of the Rules of Court. These are binding upon states. 

It should be noted that Muratov asked the Court for interim measures with a wider range than it has in the end indicated: he requested that the measures would counter all interferences with lawful activities of Russian mass media and specifically with the coverage of the war in Ukraine. It followed a week in which dozens of media outlets had been closed or their websites had been blocked on the orders Russian Federal Service for Supervision of Communications, Information Technology and Mass Media (Roskomnadzor). Roskomnadzor had specifically ordered Novaya Gazeta to delete specific articles published between 24 February and 1 March 2022 on the war in Ukraine from its website. The very day the request for interim measures by Muratov was lodged, 3 March, the other applicant in the case, Telekanal Dozhd, decided to temporarily halt its operations as its website had been blocked and its reporting had become impossible.  On the same day also, Ekho Moskvy - the famous independent radio station - had been dissolved by its board because of its reporting of the conflict in Ukraine.

Events have been evolving very quickly. Just one day after the request was lodged, the Russian Federation introduced changes in its Criminal Code, with the effect of criminalising "the spread of knowingly untrue information about the actions of the Russian armed forces". The new prohibition went into immediate effect and included severe custodial and financial penalties. To avoid full closure, Novaya Gazeta halted its reporting on the war in Ukraine and deleted earlier published articles.

The wider context is one of crackdowns on media in Russia. With a combination of criminal prosecutions, closures, censorship and self-censorship, Russia's media landscape has been deteriorating for a number of years now. According to the NGO Reporters Without Borders in its annual world press freedom index, the Russian Federation was one of the least free countries in this respect, ranking 150 out of 180 states assessed in 2021. The last two weeks of war seem to have been the final blow, for now, at least to much of Russia's independent media.

Whatever the prospects Russia abiding by these interim measures, the action taken by the Court still signals that especially under the heaviest pressure, it should not be silent but continue as far as possible its work as guardian of the Convention.

The photo depicts the front page of Novaya Gazeta a day after the war started as a sign of solidarity with Ukraine. That day the newspaper was published in the Ukrainian language.

Russia will no longer participate in the Council of Europe: a problematic Member State who could not commit to peace

On 10 March 2022, Russia announced that it will no longer participate in the Council of Europe. In the coming days we will learn more whether Russia will submit a formal declaration of withdrawal pursuant to Article 7 of the Statute of the Council of Europe, and whether it will provide any reasons for this decision.
 
In a short statement that was issued today, the Russian Ministry of Foreign Affairs indicated that they will no longer participate in the Council of Europe in response to the EU's and NATO’s continued efforts to destroy the Council of Europe and the common humanitarian and legal space in Europe. I will refrain from engaging with the details of this "argument", which is nothing but a continuation of Russia’s perversion of international law and institutions. However, one way of understanding this statement is that Russia may leave Europe's main organisation on human rights, rule of law and democracy in response to its recent suspension related to the war in Ukraine.
 
If Russia chooses to withdraw from the Council of Europe or the latter chooses to expel the former, such an outcome should be analysed in the context of Russia’s long history of unwillingness to commit to peace in Europe.
 
Russia has never been an easy member of the Council of Europe. This was not only because it was the biggest violator of the Convention but primarily because of its wars and imperialistic foreign policy. A year before joining the Council of Europe, Russia’s admission process was interrupted because of the 1995 brutal conflict in Chechnya. In 1996, when Russia joined the organisation, the CoE rapporteur concluded that “Russia [did] not … meet all Council of Europe standards” but that “integration [was] better than isolation [and] cooperation [was] better than confrontation”. The Council was right to favour integration over isolation and to give Russia a chance. In many ways, this helped, even if minimally, improve human rights in Russia. 
 

Yet, again and again, Russia proved to be unwilling to commit to peace. Despite the 1996 PACE’s membership requirements that called for the withdrawal of Russian troops from Transdniestria, Russia’s army remained in Transdniestria. Its aggression against Georgia and Ukraine are a testament of its imperialistic foreign policy that contradicts the basic aims of the Council of Europe. 
 
Although a problematic member of the organisation, Russia’s eventual  withdrawal from the Council of Europe would present a sad development for Russians and other citizens falling involuntarily (including in Ukraine, Georgia, Moldova…) under the jurisdiction of Russia as it marks the end of the application of the ECHR in a State that is in dire need of human rights. Yet, this sad reality, with or without withdrawal from Russia, can only change when a new Russian Government is willing to genuinely commit to upholding both peace and human rights. Let us hope this future is not too distant.

ECHR issues interim measures concerning Russian military operations in Ukraine

Following a request made by Ukraine on 28 February, the European Court of Human Rights has today (1 March) issued interim measures concerning Russian military operations on Ukraine territory. 

The Court has "decided to indicate to the Government of Russia to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops". The decision further indicates that the ongoing military actions of Russia in Ukraine give "rise to a real and continuing risk of serious violations of the Convention rights of the civilian population, in particular under Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment or punishment) and 8 (right to respect for private and family life) of the European Convention on Human Rights."

Interim measures are urgent measures that aim to prevent an imminent risk of irreparable harm. As such, when the Court issues interim measures, a State party to the Convention is expected to instantly stop activities mentioned in interim measures. Yet, given the past practices of Russia's non compliance with interim measures in similar situations (e.g. 2014 in relation to Crimea), and its ongoing aggression in Ukraine one can hardly expect that Russia will comply with these interim measures. In fact, the mere fact that Russia is currently suspended from the Council suggests that the State is unwilling to comply not only with the Convention but also with the fundamental aims of the Council of Europe.

Ukraine, the Suspension of Russia in the CoE, and Infringement Proceedings in Turkish Kavala Case

As the very worrisome and sad events of the Russian invasion of Ukraine are rapidly and brutally unfolding this week, causing both human suffering and human rights violations, the very fabric of peace and the international rule of law in Europe seem to be deeply at stake. The Council of Europe has just announced suspending Russia's voting rights in the Council of Europe. It announced:

"In line with the Statute of the Council of Europe, the Committee of Ministers has today decided to suspend the Russian Federation from its rights of representation in the Committee of Ministers and in the Parliamentary Assembly with immediate effect as a result of the Russian Federation’s armed attack on Ukraine.

The decision adopted today means that the Russian Federation remains a member of the Council of Europe and party to the relevant Council of Europe conventions, including the European Convention on Human Rights.

The judge elected to the European Court of Human Rights in respect of the Russian Federation also remains a member of the Court, and applications introduced against the Russian Federation will continue to be examined and decided by the Court. Suspension is not a final measure but a temporary one, leaving channels of communication open."

And apart from Ukraine itself several neighbouring countries have announced a state of emergency.

It raises, once again, the issue of how the Council of Europe, and its ECHR system should deal with states flouting their human rights and other commitments. Earlier this week, another development at the Council of Europe also occurred as part of this broader debate. For only the second time in history, the Committee of Ministers, in its supervisory function re the execution of judgments of the European Court initiated an infringement procedure under Article 46, para. 4 ECHR. The situation relates to the case of the imprisoned businessman and human rights defender Mehmet Osman Kavala. In December 2019, the Court had found violations of both Articles 5 and 18 and indicated Turkey should release him. The Grand Chamber will now have to appraise whether Turkey has failed in its obligation to execute the binding judgments of the Court. A very rare step in itself.

The Court in 2021: (worrying) facts and figures

Each year, the European Court of Human Rights issues annual reports that provide an overview of its activities, case-law and other facts and figures. The 2021 reports were issued last week, and are available here, here and here

The overview of the Court’s case-law showcase a summary of key judgments that have further elucidated or developed standards under each Convention article. For example, it elaborates how Georgia v. Russia II has shaped the understanding of extraterritoriality under Article 1, how Kurt v Austria has strengthened the standards of protection with regards to domestic violence under Article 2, and so on.

Facts and figures show the number of cases received, allocated and decided by the Court, as well as what rights have been predominantly violated in Europe and by whom.

Within a year, the Court has issued 1105 judgments in relation to more than 3000 applications (some cases were joined), and has decided more than 36000 applications with a judgment, decision or by striking the case out of the list.

More than 20% of the judgments concerned the right to a fair trial, 19% in relation to the prohibition of torture, 18% in relation to the right to liberty and security and 9% concerning the right to respect for private life.

Similar to last year, a quarter of all applications before the Court were lodged against Russia, 21% against Turkey, 16% against Ukraine, 8% against Romania, and 5% against Italy. It is worrying that, just like in the previous years (see here and here) more than 75 % of applications were brought against 5 states only. These facts and figures suggest that the number of cases before the Court cannot be reduced only by reforming the 'machinery'. A more meaningful and holistic analysis is needed to look at the causes and types of violations, and how to ensure that all States, and in particular the 'usual suspects' that top the number of applications, take seriously the obligation to respect human rights, as enshrined in Article 1 of the Convention. 

New Thematic Factsheet on Roma and Travellers

The Department for the Execution of Judgments of the ECHR has issued a new thematic factsheet on the execution of the Strasbourg Court judgments on 'Roma and Travellers'. The Council of Europe uses the terms 'Roma and Travellers' to encompass the wide diversity of certain disadvantaged groups, including Roma, Balkan Egyptians, Eastern groups (Dom, Lom and Abdal) and groups such as Travellers, Yenish, and the populations designated under the administrative term “Gens du voyage”, as well as persons who identify themselves as Gypsies.

Here is a brief summary of the factsheet:

"The European Court has underlined that as a result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority, therefore requiring special protection. It has noted that their vulnerable position means that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases.

The new factsheet provides examples of general and individual measures reported by States in the context of the execution of the European Court’s judgments, concerning notably: access to justice, right to respect for private and family life, including issues related to forced sterilisation of Roma women, protection from hate crime and housing rights, protection of property and right to education."

New ECHR Readings

Please find below a new batch of ECHR-related publications of the last few months. More will follow in some of our subsequent posts.

● Başak Çalı and Esra Demir-Gürsel, ‘The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal’, ECHR Law Review, 2021, Vol. 2, Issue 2:

‘This article introduces the Special Issue on ‘The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections’. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE’s ability to produce timely, consistent, and co-ordinated responses against systemic threats.’

● Kushtrim Istrefi and Cedric Ryngaert, ‘Makuchyan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life’, ECHR Law Review (14 September 2021) [case note]

● Elif Erken, ‘Non-Governmental Organisations and National Human Rights Institutions monitoring the execution of Strasbourg Judgments: An Empirical Perspective on Rule 9 Communications’, Human Rights Law Review, 2021, Vol. 21, Issue 3, pp. 724–751:

‘This article considers a scarcely explored perspective in relation to the execution of judgments of the ECtHR, notably, the formal involvement of NGOs and NHRIs. Rule 9(2) of the Committee of Minister Rules’ allows NGOs and NHRIs to participate in the supervision process for the execution of the Court’s judgments by submitting reports (Communications) in which these actors review and assess domestic authorities’ performance with respect to judgment execution. On the basis of interviews with important stakeholders, this article provides an all-round user-based perspective of this Rule 9 mechanism and its perceived impact. Doing so elucidates whether the Rule 9 procedure allows NGOs and NHRIs to engage in the important cycle of reporting and pressuring for change, the conclusions of which are important in assessing if and how Rule 9 works to advance the execution of judgments of the ECtHR.’

● Toon Moonen & Laurens Lavrysen, ‘Abstract but Concrete, or Concrete but Abstract? A Guide to the Nature of Advisory Opinions under Protocol No 16 to the ECHR’, Human Rights Law Review, 2021, Vol. 21, Issue 3, pp. 752–785.

‘In constitutional adjudication, a well-known distinction exists between abstract and concrete review. Under abstract review, a court evaluates a rights interference detached from any particular application to the facts of a case. Under concrete review, the review arises as an element of adjudication of specific facts. In this contribution, we explain theoretically how this distinction plays both at the macro level of a review system and the micro level of specific cases. These concepts are then used to explore and understand the advisory procedure recently introduced by Protocol No 16 to the European Convention on Human Rights. We argue that this mechanism theoretically provides for a type of review that is more abstract than the review exercised under the European Court of Human Rights’ contentious jurisdiction, yet still allows for important elements of concreteness to enter the analysis. This is confirmed by Advisory Opinions Nos 1 and 2.’

● Yutaka Arai-Takahashi, ‘Arguable but Superfluous? – Judicial Policies of the European Court of Human Rights in Relation to the Right to an Effective Remedy Before a National Authority Under Article 13 ECHR’, Israel Yearbook on Human Rights, 2021, Vol. 51.

 

● Eugénie Delval, ‘The Kunduz airstrike before the European Court of Human Rights: a glimmer of hope to expand the Convention to UN military operations, or a tailored jurisdictional link?’, The Military Law and the Law of War Review, 2021, pp. 244-275:

‘On 16 February 2021, the Grand Chamber of the European Court of Human Rights ruled, in Hanan v. Germany, that Germany exercised its extraterritorial jurisdiction for the purpose of its procedural obligation under Article 2 of the European Convention on human rights to investigate the airstrike it carried out in Afghanistan within the framework of a United Nations Security Council resolution. To establish an extraterritorial jurisdictional link, the Court relied on the ‘special features’ threshold that it has recently introduced in its jurisprudence, along with the threshold of the ‘institution of a criminal investigation’. This potentially extends the standards of protection under the ECHR to situations where Contracting States are carrying out massive military operations in armed conflict, such as airstrikes, even within the framework of a UN mandate. Nonetheless, the Court remains cautious not to formulate general theories of jurisdiction and retains a very strict (and casuistic) control over the new jurisdictional thresholds.’

● Lorenzo Acconciamessa, ‘The Case Law of the ECtHR in 2020 in the Light of the Principle of Systemic Harmonisation’, in Philip Czech et. al. (eds.), European Yearbook on Human Rights, 2021 (Intersentia 2021).

And finally, Yota Negishi, of Seinan Gakuin University in Japan, has published monograph with a comparative study of the ECHR and the Inter-American Human Rights system, entitled Conventionality Control of Domestic Law: Constitutionalised International Adjudication and Internationalised Constitutional Adjudication, with Nomos:

'Through gaining lessons from the doctrine of constitutionality control, the book deals principally with conventionality control achieved by judicial adjudicators. This monograph fills the gap in comparative international human rights law by analysing the practice of conventionality control in Europe and Latin America. Based on the empirical data, the author normatively envisions a ‘trapezium’ model of conventionality control with the features of openness, substantivism and human-centrism, which overcomes the limits of the closed, formalist, and State-centric ‘pyramid‘ model.'

ECHR MOOC Starts Again on 10 February

Utrecht University's free Massive Open Online Course (MOOC) on the ECHR is starting again this week, on 10 February 2021. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by myself (Antoine Buyse) and my Utrecht University colleagues professor Janneke Gerards and Claire Loven. This is the abstract of our six-week course:

'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!'

Please watch this short introduction video to get an impression: