Danileţ v. Romania: A Plea for Judges' Freedom of Expression

by Dragoș Călin, Judge and  co-president of the Romanian Judges’ Forum Association

 

 

Introduction

In the case no.16915/21, Danileţ v. Romania, the European Court of Human Rights held on February 20, 2024, by a majority (four votes to three), that there had been a violation of Article 10 of the European Convention on Human Rights and the sanction imposed on the judge for Facebook posts concerning matters of public interest infringed his freedom of expression.

 

The case concerns the limits of freedom of expression in the situation of a judge who, at the time of the facts, held neither the position of president of any supreme court nor a member of a judicial council, nor the position of representative of a professional association. From this point of view, the ECtHR decision seems to bring some jurisprudential clarifications. We will present below the main lines of the Court's reasoning, aspects related to the situation of Romanian judges regarding the freedom of expression and the inadequate protection of opinions expressed by judges, individually, in relation to the proper functioning of justice, as well as the need to avoid the direct intimidation or silencing of judges.

 

Facts

At the relevant time, Cristi Danileţ was a judge at Cluj County Court and he was well known for actively taking part in debates and enjoyed a certain nationwide renown in Romania. In January 2019, he posted two messages on his publicly accessible Facebook page, which had roughly 50,000 followers, and for which, in May of that year, the Superior Council of Magistracy (SCM) imposed a disciplinary penalty on him, consisting in a 5% pay cut for two months and based its decision on Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors.

 

As to the first message, which was republished and commented on by numerous media followers, the SCM found that Cristi Danileţ had – unequivocally and before thousands of readers – cast doubt on the credibility of public institutions, insinuating that they were controlled by the political class and proposing as a solution that the army intervene to ensure constitutional democracy. It considered that Cristi Danileţ had impaired the honour and good reputation of the judiciary, and that he had breached his duty of restraint in a manner that had been able to tarnish the good reputation of the judiciary.

 

In his second message, Danileţ had posted on his Facebook page a hyperlink to an article in the press entitled “A prosecutor sounds the alarm. Living in Romania today represents a huge risk. The red line has been crossed when it comes to the judiciary” and had published a comment praising the courage of the prosecutor in question taking into account that he dared to speak openly about the release of dangerous inmates, about the catastrophic initiatives to amend the Justice laws on the way the judicial system was organised, and about the verbal attacks against judges. The SCM considered that the language used in Judge Danileţ’s published comment had overstepped the limits of decency and had been unworthy of a judge.

 

In May 2020, the High Court of Cassation and Justice dismissed Judge Danileţ’s appeal and upheld the SCM’s decision.

 

The Court’s Judgment

The European Court of Human Rights found that the domestic courts had failed to give due consideration to several important factors, in particular concerning the broader context in which the applicant’s statements had been made, his participation in a debate on matters of public interest, the question whether the value judgments expressed had been sufficiently based on facts and, lastly, the potentially chilling effect of the sanction. In addition, the existence of an attack on the dignity and honour of the profession of judge had not been sufficiently demonstrated.

 

According to the European Court, the domestic courts had not granted the applicant’s freedom of expression the weight and importance such a freedom was due in the light of the Court’s case-law, even though a means of communication had been used (namely a publicly accessible Facebook account) that might have raised legitimate questions with regard to judges’ compliance with their duty of restraint (para.82). Consequently, the Romanian courts had not given relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression (para.83).

 

Regarding the first message, the Court found that it contained criticism of the political influences to which certain institutions were allegedly subject, namely the police, the judiciary and the army. The applicant had referred to the constitutional provisions under which the army was subject to the will of the people and contemplated the risk of any form of political control over that institution. Through the use of rhetorical questions, he invited his readers to imagine the army acting against the will of the people, someday, under the pretext of protecting democracy. In his view, this was a mere detail behind which lay a more serious problem. Resituated in their proper context, the applicant’s statements amounted to value judgments to the effect that there would be a danger to constitutional democracy in the event that public institutions fell once more under political control. Those statements therefore concerned matters of public interest relating to the separation of powers and the need to preserve the independence of the institutions of a democratic State (para.68-71).

 

Regarding the second message, the Court considered that the applicant’s position clearly fell within the context of a debate on matters of public interest, as it concerned legislative reforms affecting the judicial system (para.72).

 

The Court took the view, concerning both the second and first messages, that any interference with the freedom to impart or receive information ought to have been subject to strict scrutiny, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State in such cases.

 

That being stated, the Court reasserted the principle that it could be expected from judges that they should show restraint in exercising their freedom of expression, as the authority and impartiality of the judiciary were likely to be called in question. However, the statements at issue were not clearly unlawful, defamatory, and hateful or calls to violence (para.79).

 

The Court attached significant weight to the fact that the national courts had chosen not to impose the least severe sanction on the applicant (which, at the relevant time, was a warning), which had undoubtedly a “chilling effect”, discouraging not only the applicant himself, but other judges as well, from taking part, in the future, in the public debate on matters concerning the separation of powers or the legislative reforms affecting the courts and, more generally, on matters pertaining to the independence of the judiciary (para.80).

 

The Court concluded that, in weighting up the competing interests at stake, the domestic courts had failed to give due consideration to several important factors, and had not provided relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression.

 

Judge Rădulețu expressed a concurring opinion, considering that, in the absence of case law establishing clear and predictable rules as to the extent of judges’ duty of discretion in this type of situation, in the presence of a subject of general interest and especially in the absence of a balancing of competing interests by the national courts (the first called upon to carry out this exercise), the protection of the applicant’s freedom of expression must prevail.

 

Judges Kucsko-Stadlmayer, Eicke and Bormann expressed a joint dissenting opinion. They emphasized that national authorities are in principle best placed to assess the impact of the language used in the particular context of their country and society and the decision to sanction the applicant fell within the general margin of appreciation by which the proportionality of an interference is measured.

 

The situation of Romanian judges regarding the freedom of expression

Romania has a legal and professional tradition of judicial silence, and judges were expected to absolutely refrain from manifesting any form of political beliefs. Judges are prohibited from any negative comments on the professional and moral integrity of their colleagues. Ideas or orientations that might suggest a connection to a party or to partisan structures must not be expressed on social media. Judges are also prohibited from supporting, promoting or evaluating in any manner campaigns, pages or posts by activists or groups, if this were to bring the judiciary into disrepute. The law is not sufficiently precise.

 

The successive amendments to the laws of judiciary in Romania have attracted the attention of the Venice Commission (see Opinion No. 924/2018, and Opinion No. 950/2019), and of the Group of States against corruption Group of States against corruption.

 

Since 2018, the Judicial Inspectorate (an autonomous entity that is part of the SCM), launched dozens of disciplinary proceedings against activist judges and prosecutors. All these disciplinary investigations were based on the provisions of Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors: „There are disciplinary offenses: the conduct that has a negative impact on the professional honor or probity or the prestige of justice, committed in the exercise or outside the exercise of the official competences”. It is possible to start the investigation on this ground if mass-media write something against a judge or if the spokesperson from Judicial Inspectorate finds an improper post on social media even if no one is making a complaint on this. There have even been some instances when Pthe resident of the SCM demanded the Judicial Inspectorate to start an investigation and that ame President was a member in the subsequent disciplinary Panel of the SCM in the case.

 

In its judgment of 11 May 2023 in Case C-817/21, Inspecția Judiciară, the Court of Justice of the European Union that the powers of the Judicial Inspectorate were used on several occasions for the purpose of political scrutiny of judicial activity. Examples included preventive suspension from office until the completion of disciplinary investigations against judges from the associations of judges and prosecutors who criticised regressive judicial reforms of the 2017-2019 period and/or who submitted requests for preliminary rulings to the Court of Justice of the European Union. Even after this European confirmed the political control of judicial activity in Romania, carried out through the Judicial Inspectorate, the SCM did not react.

 

In 2021, more than 500 judges and prosecutors signed an open letter addressed to the SCM and Minister of Justice, requesting to repeal Article 99(a) of the Law no.303/2004. The letter raised concerns about arbitrary interpretations of the law, because there are no minimum criteria, details or clarifications, in order to establish, in a transparent and justified manner, the conduct of magistrates which violate honor and professional probity. In spite of some minor reforms in the years since, there is no provision in the new laws on the judiciary to stop the harassment of ‘inconvenient’ judges and prosecutors.

 

Inadequate protection of opinions expressed by judges, individually, in relation to the proper functioning of justice

The Bangalore Principles of Judicial Conduct emphasize the right of every judge to free expression and opinion, to freedom of association, as well as to freedom of belief, while respecting the dignity of the judicial office, so that neither its independence nor impartiality is prejudiced. At the same time, judicial independence is a value that must be defended both from within, by legal professionals, and from without, by civil society, and when democracy and fundamental freedoms are at risk, the judge's duty of reserve becomes subsidiary to the duty of indignation.

 

The opinions expressed by judges in relation to the proper functioning of justice, a matter of public interest, are conventionally protected, even if they have political implications, as judges cannot be prevented from getting involved in the debate on these subjects. The fear of sanctions can have a dissuasive effect on judges to express their views on other public institutions or public policies. This chilling effect manifests itself to the detriment of society as a whole. As the Court has held, “even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter. Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate” (ECtHR, Baka v. Hungary, para.165).

 

The existence and activities of professional associations related to the field of justice were and are necessary to increase the efficiency, transparency and quality of the judiciary. Consequently, the presidents of professional associations of magistrates have not only the right, but also the obligation to formulate points of view on matters related to the functioning of justice. The Court’s case-law indeed protects the freedom of opinion related to the functioning of the judicial system, especially in the case of magistrates with high positions (for example, members of councils of the judiciary, presidents of supreme courts, general prosecutors, etc.) or those who represent associations as legally established professionals.

 

In Cristi Danilet’s case, domestic authorities should have taken account of his past capacity as a member of the Romanian SCM (in the period 2011-2016) and his subsequent permanent activity as an integrity whistleblower and expert commentator on the functioning of the judiciary. Disregarding these calls into question a legitimate and extremely necessary aspect: protecting the expressed opinions of judges when democracy and fundamental freedoms are at risk.

 

Conclusion

Of course, the judiciary should not be imagined as a silent body, in which only the heads of courts or prosecutors' offices or the representatives of judges and prosecutors constituted in professional associations can open their mouths, the others being condemned ab initio to a perpetual silence. A judge is a member of society and from this position, cannot be forced to live in a bubble, disconnected from social realities. In a former communist society, in which civic attitude is not yet developed, and the public opinion does not immediately react to slippages of the executive against democracy or the independence of the judiciary, judges and prosecutors should be allowed to express their opinion on these subjects as long as impartiality in the performance of their duties is not affected.

 

As Opinion No.3 of the Consultative Council of European Judges states, “judges should be allowed to take part in certain debates regarding the national legal policy. They must be able to be consulted and play an active role in the preparation of legislation regarding their status and, more generally, the functioning of the judicial system” (para. 34). Indeed, it is crucial that each magistrate, taken individually, can express opinions regarding the functioning of justice, at least in situations where democracy and fundamental freedoms are endangered.

 

The direct intimidation or silencing of judges could turn the judiciary into a giant with feet of clay, passive, and without words, represent the greatest danger related to the independent functioning of the judiciary. Countering these trends across Europe is crucial for democracy. The Court’s recent judgment in Danileţ v. Romania seems to be a good start in this regard.

 

Climate Cases Decided Today: Small Step or Huge Leap?

by Antoine Buyse and Kushtrim Istrefi

This morning, the European Court of Human Rights issued its Grand Chamber decisions and judgment in three keenly awaited climate change cases. Two cases were declared inadmissible, but the Swiss grandmothers (Klimaseniorinnen) won their case in two crucial respects: the Court found violations of their right to private life under article 8 ECHR and of access to court under Article 6 ECHR. Although the rejection of most cases and complaints is disappointing, yet was expected, probably much more important is the principled step that the Court has taken to for the first time explicitly acknowledge the fact that climate change can affect human rights. So depending on one's perspective this is a very small step or a huge leap forwards. This is our initial analysis of some key aspects of today's Grand Chamber pronouncements. No doubt the cases will yield food for thought and analysis as well as policy change for many years to come.

The Swiss Klimaseniorinnen

The case of elderly Swiss ladies, Verein Klimaseniorinnen Schweiz and others v Switzerland, was the only one of the three in which the Court issued a judgment and also includes a lot of the argumentation that was applied in the other two cases. 

In a nutshell, the Court found violations of the right to private life under Article 8 (16 votes against 1) and of the right to access to Court under Article 6 (unanimously) ECHR. But, importantly, this only applies to the legal person of the association of the Klimaseniorinnen, and not to the four individual elderly women, one of whom tragically passed away over two years ago, who were co-applicants in this case. The Grand Chamber found they had no locus standi by applying a very high threshold for victim status under the Convention. No doubt, this element of the case in itself, and the for many counter-intuitive finding that the association could be regarded as a victim, will be the basis for a lot of academic debate and analysis.

Different from other environmental harm?

Importantly, the Court crucially distinguishes climate change cases from cases of environmental harm across borders which it calls fundamentally different:

"415.  The Court’s existing case‑law in environmental matters concerns situations involving specific sources from which environmental harm emanates. Accordingly, those exposed to that particular harm can be localised and identified with a reasonable degree of certainty, and the existence of a causal link between an identifiable source of harm and the actual harmful effects on groups of individuals is generally determinable. Furthermore, the measures taken, or omitted, with a view to reducing the impugned harm emanating from a given source, whether at the regulatory level or in terms of implementation, can also be specifically identified. In short, there is a nexus between a source of harm and those affected by the harm, and the requisite mitigation measures may be identifiable and available to be applied at the source of the harm. "

Two margins of appreciation and positive obligations

What is really notable is that the Court explicitly distinguishes different margins of appreciation for states in relation to climate change. While there is a wide margin of appreciation in terms of how to tackle climate change (choice of policies etc.), the margin is reduced in terms of "the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect", because of the "nature and gravity of the threat" and the consensus among states to achieve carbon neutrality (para. 543). And in achieving a fair balance in terms of positive obligations under the Convention, "climate protection should carry considerable weight in the weighing-up of any competing considerations" (para. 542). These are really important and principled pronouncements by the Court today. 

As second key step is that the Court recognises for the first time that the ECHR entails positive obligations for states in the context of climate change, namely "to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change" (para. 545). More concretely this entails putting "in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention" (para. 546). And it includes archiving carbon neutrality within the next three decades (para. 548) in order to comply with Article 8!

In the specific case of Switzerland, it failed to comply with Article 8. As the Court concluded (para. 573), there were: 

"critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets. By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context."

Obligations under Article 8: similar to Article 2?

Although the Court found no violations under Article 2 in the present case, it must be noted that the standards developed with regards to the right to private life under Article 8 create very similar or even the same State obligations to combat climate change as if they would have been decided under Article 2. The Court mentioned this in a rather explicit way by noting that while it is:

“537: (...) appropriate to examine the applicant association’s complaint from the angle of Article 8 alone… in its case-law analysis below it will have regard to the principles developed also under Article 2, which to a very large extent are similar to those under Article 8 and which, when seen together, provide a useful basis for defining the overall approach to be applied in the climate-change context under both provisions” 

Indeed, the positive obligations developed under Article 8 relate to specific measures that State’s must take to reduce greenhouse gas (GHG) emissions. The Court found that the failure of the Swiss authorities’ to put in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations has led to a breach of Article 8 (para 573). It also noted that, “as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets .... By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.”

In our view, the nature of positive obligations set under Article 8 do not differ from the measures that would be required under Article 2 as both of them ultimately require States to take specific measures to reduce GHG emissions. 

It is important that the Court has also explicitly mentioned this connection between Article 8 and Article 2 obligations, not least because of domestic implications of this judgment. For example, in Urgenda, the Dutch courts found a violation of Article 2 ECHR with regards to State’s failure to sufficiently reduce GHG emissions. If the Strasbourg Court had made no connection between Articles 8 and 2, one could wonder whether Dutch courts misapplied the ECHR in the Urgenda case. But today's Grand Chamber judgment shows that it is less relevant on whether we use Article 8 or Article 2 since both create the same State obligations to sufficiently reduce GHG emissions. In this vein, the failure of Strasbourg Court to find a violation on Article 2 does not reduce ECHR obligations to combat climate change. Instead, by focusing on Article 8 rather than Article 2, the Court has opened an alternative, more creative way to address climate change obligations while avoiding the higher and more complex procedural and admissibility burdens that are normally triggered through Article 2.

No access to court

In the Grand Chamber's unanimous finding of a violation of Article 6 ECHR due to a lack of access to court, Strasbourg gives quite an open reprimand to the domestic courts in Switzerland:

"635.  The Court is not persuaded by the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit (see paragraphs 56‑59 above). This was not based on sufficient examination of the scientific evidence concerning climate change, which was already available at the relevant time, as well as the general acceptance that there is urgency as regards the existing and inevitable future impacts of climate change on various aspects of human rights (see paragraph 436 above; see also paragraph 337 above as regards the respondent Government’s acceptance that there was a climate emergency). Indeed, the existing evidence and the scientific findings on the urgency of addressing the adverse effects of climate change, including the grave risk of their inevitability and their irreversibility, suggest that there was a pressing need to ensure the legal protection of human rights as regards the authorities’ allegedly inadequate action to tackle climate change." [our emphasis]

The Grand Chamber then places this finding in the dual role for domestic courts in this context: both in implementing ECHR rights as well as in being key actors in climate change issues: 

"629. the Court considers it essential to emphasise the key role which domestic courts have played and will play in climate-change litigation, a fact reflected in the case‑law adopted to date in certain Council of Europe member States, highlighting the importance of access to justice in this field. Furthermore, given the principles of shared responsibility and subsidiarity, it falls primarily to national authorities, including the courts, to ensure that Convention obligations are observed."

Just like politicians cannot hide behind judges, judges cannot hide behind politicians either, the Court seems to say: it truly is a shared responsibility to address climate change, also from a human rights perspective.

What's next: implementation

So what should Switzerland now do to implement the judgment? Whereas the applicants had asked the Court to set specific emission reduction targets in line with he newest climate science insights, the Court deferred to give any concrete indications, and it is worth citing the Grand Chamber's consideration in full here:

"657. (...) having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area, the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment."

This in a way was also to be expected. The 'hot potato', so to speak, is put on the plate where it probably belongs, that of the state parties. All the more ironic in this situation as this is one of those European Court judgments that engages necessary action by all states. However, to the disappointing of many, the states will not be guided by specific actions demanded by Strasbourg, but the target (carbon neutrality within three decades) is clear and in line with scientific insights. Not judges but politicians will have to take action, after this strong judicial nudge.

There is thus, even if it may seem a small win to some, great innovation in the Klimaseniorinnen judgment, even if not on all fronts.

The former French mayor

Then the two other cases, which were dismissed in inadmissibility decisions by the Court: 

The case of the former French mayor of the coastal town of Grande Synthe, Carême v. France, was declared inadmissible ratione personae. The applicant complained under Articles 2 and 8 ECHR about insufficient mitigation measures being taken against flooding of coastal areas by France. As he both lodged a complaint in his own capacity and on behalf of his (former) municipality, the Court held - in line with existing case-law, that state authorities, including local ones, could not complain under the Convention. As regards his own personal situation, the applicant was no longer a mayor but had in the meantime been elected to the European Parliament and lives in Brussels, so outside France. Building on what it said in the Klimaseniorinnen case on victim status, the Grand Chamber held the following to reject the application:

"83. (...) the Court does not consider that for the purposes of any potentially relevant aspect of Article 8 – private life, family life or home – he can claim to have victim status under Article 34 of the Convention as regards the alleged risks linked to climate change threatening that municipality. This is true irrespective of the status he invoked, namely that of a citizen or former resident of that municipality. The same considerations apply as regards the applicant’s complaint under Article 2 of the Convention.

84.  Holding otherwise, and given the fact that almost anyone could have a legitimate reason to feel some form of anxiety linked to the risks of the adverse effects of climate change in the future, would make it difficult to delineate the actio popularis protection – not permitted in the Convention system – from situations where there is a pressing need to ensure an applicant’s individual protection from the harm which the effects of climate change may have on the enjoyment of their human rights."

The case of the Portuguese children

As regards the probably most publicised case of the three, the one of Portuguese children complaining against 33 state parties of the ECHR for causing dangers to their life and health, amongst others because of the increase of forest fires as a result of climate change (under Articles 2, 3, 8, and 14), Duarte Agostinho and Others v. Portugal and 32 Others, the Court rejected the application on two different grounds. Relating to the 32 states beyond Portugal about which the children and teenagers complained, the Court stuck to its line on extra-territoriality of jurisdiction and did not go beyond that for the special situation of climate change. It very specifically distinguished these type of climate change-related situations from the more traditional 'local' environmental harm across borders. Reiterating and summarising its current jurisprudence on extraterritorial obligations under the ECHR, the Court held that climate change cases are not of such a special nature to warrant a new extension of extraterritorial jurisdiction: 

"192.  First, States have ultimate control over public and private activities based on their territories that produce GHG emissions. In this connection, they have undertaken certain international-law commitments, notably those set out in the Paris Agreement, which they have developed in their domestic laws and policy documents as well as in their Nationally Determined Contributions (“NDC”) under the Paris Agreement. Moreover, as set out in Verein KlimaSeniorinnen Schweiz and Others (cited above, §§ 544-554), certain positive obligations arise under the Convention as regards climate change.

193.  Secondly, albeit complex and multi-layered, there is a certain causal relationship between public and private activities based on a State’s territories that produce GHG emissions and the adverse impact on the rights and well-being of people residing outside its borders and thus outside the remit of that State’s democratic process. Climate change is a global phenomenon, and each State bears its share of responsibility for the global challenges generated by climate change and has a role to play in finding appropriate solutions.

194.  Thirdly, the problem of climate change is of a truly existential nature for humankind, in a way that sets it apart from other cause-and-effect situations. More fossil fuels being extracted or burnt anywhere in the world, beyond what can be offset by natural carbon sinks (net zero), will inevitably lead to higher GHG concentrations in the atmosphere and therefore to worsening the effects of climate change globally.

195.  However, the Court finds that these considerations cannot in themselves serve as a basis for creating by way of judicial interpretation a novel ground for extraterritorial jurisdiction or as justification for expanding on the existing ones. It will now proceed to address the other arguments put forward by the applicants as a basis for justifying an extension of extraterritorial jurisdiction." 

With this the complaint against the whole group of states is declared inadmissible. The Court explicitly states it is not following the different conception of jurisdiction by the Inter-American Court of Human Rights or the United Nations Child's Rights Committee (para. 212).

And in respect of the then remaining complaint against Portugal only, the Court simply applied standing case-law on non-exhaustion of domestic remedies. Closely connected to this, the Court held that the victim stays is also not clear and decided not to further examine this.

Although the application was a legal gamble worth taking, the outcome of the Court's decision will not be surprising for ECHR experts or Court watchers. 

Conclusion, for now ...

What the judgment in the Klimaseniorinnen case will for sure do is open the doors for more climate change cases, both at the European Court of Human Rights, but much faster and much more extensively also in all ECHR state parties. In other words, many Urgenda-like cases are bound to follow at the national level across Europe. For bold domestic courts this could still relate to the right to life under Article 2 ECHR, but more firmly building on todays's judgment, the right to private life under Article 8 seems the most solid way, for now. Let us hope it will help to make a difference.

The video of the delivery of the judgment can be watched here and the Court has also issued a Q&A document on today's cases.

Conference on EU Accession to the ECHR

Webinar on ECtHR's Judgments in Climate Change Cases

On Friday 12 April 13:00 CET the University of Lausanne is organizing a reaction webinar on the ECtHR's first judgments on climate change. In the webinar, scholars and practitioners will offer their reactions and preliminary assessments of the decisions, to be delivered by the Grand Chamber of the Court on 9 April in the cases of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20), Carême v. France (no. 7189/21) and Duarte Agostinho and Others v. Portugal and 32 Others  (no. 39371/20). Participants will be offered the opportunity to ask questions, and a recording will be made available after the webinar here.  

The roundtable will consist of:

• Prof. Véronique Boillet, Professor of Constitutional Law, Human Rights and the Environment, University of Lausanne
• Joie Chowdhury, LL.M. (Columbia Law School), Senior Attorney (Climate Litigation and Accountability) for the Center for International Environmental Law's Climate & Energy Program
• Dr. Corina Heri, Postdoctoral researcher at the University of Zurich, "Climate Rights and Remedies" research project
• Dr. Yann Robiou du Pont, Marie Curie Fellow, University of Utrecht, researching how to quantify what are fair and ambitious emissions reductions and financial contributions from states, businesses and other actors to align with the Paris Agreement mitigation goals
• Prof. Dr. Sonia I. Seneviratne, Deputy head of Inst. Atmospheric and Climate Science, ETH Zürich, coordinating lead author of the 6th assessment report of the IPCC (2018-2021)
• Prof. Margaretha Wewerinke-Singh, Associate Professor of Sustainability Law, University of Amsterdam, Counsel for Blue Ocean Law

• Moderated by Prof. Evelyne Schmid, Professor of Public International Law, University of Lausanne; with Hana Drif, doctoral researcher, helping with the chat.

You can register here. 

New ECHR Articles in the HRLR

The newest issue of the Human Rights Law Review (Volume 24, Issue 1, March 2024) has been published, which includes a symposium. - partly comparable with a special issue - on the theme of 'The European Court of Human Rights and the Theoretical Crisis of Human Rights'. In addition, it includes also another ECHR-related article. Here is the list with abstracts:

* Bosko Tripkovic and Alain Zysset, ‘Uncovering the Nature of ECHR Rights: An Analytical and Methodological Framework’, Human Rights Law Review (2024):

 

‘How does the European Court of Human Rights (ECtHR) understand the nature of human rights? The article develops a framework for the analysis of this question and shows how it can be applied. The first part identifies a gap at the intersection of doctrinal and philosophical approaches to human rights practice that leaves the ECtHR’s understanding of the nature of rights unaccounted for. The second part develops an analytic and methodological framework based on the idea of grounds, content and scope of human rights to bridge this disciplinary divide and facilitate a more perspicuous analysis of the Court’s conception of the nature of human rights. The third part tests this framework by examining the Court’s doctrines in relation to freedom of thought, conscience and religion and the right to free elections.’

 

* Corina Heri, ‘Deference, Dignity and ‘Theoretical Crisis’: Justifying ECtHR Rights Between Prudence and Protection’, Human Rights Law Review (2024):

 

‘The present article engages with human rights law’s purported ‘theoretical crisis’, according to which rights—and specifically those in the European Convention on Human Rights (ECHR)—are bereft of a convincing theoretical foundation. In doing so, the article interrogates the use of crisis-oriented language, challenging the very idea of a ‘theoretical crisis’ of rights. Identifying the tension between judicial activism and judicial deference as the source of the crisis narrative, this piece engages with the theoretical foundations of ECHR rights, rejecting binary opposition between opposing moral and political accounts of these rights. It presents an alternative account by framing human rights as capable of combining convincing moral foundations with institutional and political realities. This means melding principle and dynamism, and using moral values to interrogate a human rights law that remains indivisible from its institutional backdrop. Under this account, both the Court’s tools of deference, especially its European consensus doctrine, and the objection of rights inflationism must be subjected to scrutiny. This article straddles theory and practice to allow for a fresh perspective concerning the justification of rights, what is at stake, who bears the burden of restraint, and how current responses to backlash should be re-evaluated.’

 

* Steven Wheatley, ‘Interpreting the ECHR in Light of the Increasingly High Standards Being Required by Human Rights: Insights from Social Ontology’, Human Rights Law Review (2024):

 

‘This article looks to make sense of those cases where the European Court of Human Rights (ECtHR) changes its position on interpretation in light of the increasingly high standards being required by human rights, when the Court applies the doctrine of evolutive interpretation to the ECHR’s object and purpose, as a Convention for the protection of ‘human rights’ (e.g. Selmouni v France). This raises two questions: What do we mean when we speak about ‘human rights’? Can the demands of human rights really change over time? Looking to the insights from social ontology, we can think of human rights as a social institution, emerging with the adoption of the Universal Declaration of Human Rights and evolving with changes in human rights practices. Understood this way, reliance on the increasingly high standard doctrine becomes defensible when the ECtHR judgments are consistent with the evolving practices on human rights and the moral values that underpin the UDHR.’

 

* Lea Raible, ‘Allocating Human Rights Obligations in the ECHR’, Human Rights Law Review (2024):

 

‘This article asks how to allocate human rights obligations stemming from the European Convention on Human Rights and defends an interpretivist account of human rights based on the values of integrity and equality to answer it. First, it considers the structure of rights and argues that human rights usually require a duty bearer who needs to be identified. Second, the article analyses interest-based theories of human rights and shows that they do not speak to the allocation of duties. Third, I argue that duties can only be allocated relying on a normative principle and that an interpretivist account of human rights allows for underlying values to be identified. Fourth, I show that these values should be understood to be integrity and equality. Finally, the article applies the framework to the judgment in Carter v Russia, showing that an explicitly normative account supplies principled distinctions where other approaches cannot.’

 

* Başak Çalı, ‘Does the Practice of the European Convention on Human Rights Fit the Practical Conception of Human Rights?’, Human Rights Law Review (2024):

 

‘This article investigates how the practice of European human rights, organised around the European Convention on Human Rights, can be brought into conversation with the practice conception of human rights advanced by Charles Beitz in the Idea of Human Rights. The article argues that this is a challenging task. Following Beitz’s construction of the human rights practice composed of (a) a global practice, (b) political discursive practice, (c) triggering a range of international action for corrective concern, (d) when states fail to protect urgent individual interests, the article identifies two main challenges: (1) the regional and legal-political character of the European human rights practice and (2) the lack of fit between the heuristic of urgency of individual interests and the European human rights practice. Having identified these challenges, however, I conclude that putting European human rights practice and the practice conception into a conversation reveals new knowledge at the intersection of moral and legal accounts of human rights. A closer engagement with the practice conception enables a better understanding of the key abstract features of European human rights practice. A closer engagement with this practice accentuates the normative case for making sense of predominantly legal and regional practices of human rights.’

 

* Alon Harel, ‘The Tension between the National and ECHR Human Rights Adjudication: A Normative’, Human Rights Law Review (2024):

 

‘This article examines cases of conflicting decisions between the ECHR and State Courts. I argue for ‘discordant adjudicative parity.’ According to discordant adjudicative parity, there are compelling non-instrumental reasons for having both international adjudicative institutions and state adjudicative institutions that can make binding, conflicting decisions. Binding decisions by international adjudicative institutions embody the understanding that human rights are duties rather than decisions that are voluntarily undertaken. State Courts facilitate deliberative engagement on the part of citizens as, ultimately, the citizens are in charge of States’ courts. I use this analysis to justify the principle of subsidiarity in European law.’

 

* Julen Etxabe, ‘Borrowed Words and Judicial Gestalt: A Dialogical Reading of Hirst, the ECtHR and Prisoner Voting Rights’, Human Rights Law Review (2024):

 

‘This article suggests that judgments of the European Court of Human Rights exhibit a textual quality that Mikhail Bakhtin called dialogism, namely, a kind of discourse constituted by a plurality of mutually effecting and interpenetrated voices. Such compositional choice is not just a lengthy prolegomenon to any decision, nor an unnecessary appendix that could be safely eliminated; it is actually fundamental for the construction—and comprehension—of any ECtHR opinion. In this article, I will focus on the 2005 case of Hirst, in which the Grand Chamber declared that the UK legislative blanket ban on prisoner voting is incompatible with the European Convention of Human Rights. As a controversial case about as-yet live-wire issues, Hirst can be shown to be a profoundly dialogized text despite all appearances to the contrary, which paves the way for a more general argument about the dialogical practice of adjudication by the Court.’

Summer School on the Council of Europe

The School of Law and Social Justice of the University of Liverpool will be organizing its second summer school on the Law of the Council of Europe. It will take place between 8-19 July 2024 and is useful for postgraduate students, post-doctoral researchers, early career scholars and practitioners interested in the law of the Council of Europe, human rights, the rule of law and democracy. The lecturers include researchers as well as practitioners. This is the abstract of the contents:

''On 5 May 1949, the Statute of the Council of Europe was signed in London establishing the organisation. For the last 75 years, Europe has been united in the protection of human rights, democracy, and the rule of law. Today, humankind faces new challenges that differ from the ones that were prevailing in Europe in the spring of 1949. Our Summer School will explore two key strands of themes. First, the Summer School will reflect on certain key modern-day challenges, discussing what role the Council of Europe can play in the era of digital revolution and new technologies. These new technologies, such as artificial intelligence and neurotechnology, offer opportunities and may even impact positively human rights. But they can also endanger the enjoyment of fundamental human rights. How well-equipped is the Council of Europe and human rights law more generally to offer protection from these emerging threats? Second, the Summer School will assess the Council of Europe as a sophisticated and multipart system for the protection of human rights, democracy, and the rule of law. To that end, the Summer School will consider how different bodies of the Council of Europe contribute to the fundamental aims of the organisation, but also the history and the effectiveness of the Council of Europe as a whole and of some of its mechanisms, treaties and bodies, such as the Committee for the Prevention of Torture, the Social Rights Committee, the Venice Commission, the European Court of Human Rights and many others.''

The deadline for applications is 14 April 2024.

New Book on the European Court and its Two Regional Siblings

Laurence Burgorgue-Larsen of the Sorbonne University in France has published an English-language version of her earlier comparative work in French on the three regional human rights courts. The book, entitled The 3 Regional Human Rights Courts in Context - Justice That Cannot Be Taken for Granted, was just published with Oxford University Press and of course includes the European Court of Human Rights as one of the three courts analysed. This is the abstract:

'At specific moments in the history of Africa, Europe, and Latin America, each region decided to create supranational jurisdictions to protect human rights. These are, in chronological order, the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and Peoples' Rights. While each has been the subject of important, dedicated monographs, no major study has analysed both the institutional and jurisprudential issues of all three regional systems.

The 3 Regional Human Rights Courts in Context: Justice That Cannot Be Taken for Granted is the first book to offer a comprehensive comparison of the three systems. Rather than merely juxtaposing analogous features, the book considers how the three courts operate as parts of a greater, integrated whole. Similarities and differences between the courts are illuminated alongside historical, political, and sociological insights, in addition to the book's primary legal focus.

Close analysis of the processes by which the courts came into being makes it clear that, regardless of distinct political, cultural, or other variances, states on each of the three continents have chafed against international supervision. The book also debunks the common belief that, after the Second World War, the thrust of human rights initiatives was so powerful that states no longer need to discuss them. Justice cannot be taken for granted—a position further supported by the book's analysis of how each court has evolved and how their rulings have been implemented.

Laurence Burgorgue-Larsen's dynamism and multidisciplinary approach makes it possible to truly understand the stakes behind the institutional and jurisprudential developments of the three regional human rights courts. This is a book that will interest not only legal practitioners but also specialists in international relations, human rights, and countless other fields.'

Up in the Trees - Interim Measures and Environmental Protesters

A rather unusual request to Strasbourg: earlier this week, the European Court of Human Rights rejected a request for interim measures by a group of environmental protesters in France. The protesting people, known as écureuils (squirrels), have been up, at a height of 15 metres, in the trees in the Tarn region of France. They are trying to halt the felling of trees on the trajectory of a future motorway that would cross a stretch of forest land. In their application, in the case of Viard-Seifert and Others v. France (application no. 6024/24) they asked to Court as an interim measure to securing food and water supplies for them - currently halted by the police who are attempting to get the protesters down - as well as their safety. According to the Court's press release:

'Relying in particular on Article 3 of the Convention, they complained of the police measures being used to force them down from the trees. Their main argument was that the fact of depriving them of water, food and sleep amounted to inhuman and degrading treatment. They alleged there was an imminent risk of irreparable harm to their lives and health.

On 29 February 2024 the applicants had lodged an application with the European Court of Human Rights under Rule 39 of its Rules of Court, requesting the adoption of a series of measures aimed, in particular, at securing their supply of food and water and ensuring their safety.'

After a quick back and forth between the parties, the Court's duty judge decided not to indicate interim measures. The press release does not indicate the exact reasoning, but the threshold criterion for interim measures is whether there would be "irreparable harm" to the rights under the ECHR. The choice for the protesters to stay in the trees or come down may have played a role there.

The activists have also alerted the special rapporteur on environmental human rights defenders under the Aarhus Convention, Michael Forst, to the issue. For more background info on the situation, see also this news release. According to local media, several 'squirrels' are still up in the trees.

Call for Abstracts Workshop 75 Years Council of Europe

The University of Grenoble-Alpes is organising the workshop 'The Council of Europe: How to move forward after 75 years? The past, present and future of an international organisation in its seventies' in December 2024, with Anca Ailinca as convener. It has issued a call for abstracts, with 24 April 2024 as a deadline. The event will be hybrid: on-site and online, in English and French. Please find al information below:

'The Council of Europe will celebrate its 75th anniversary on 5 May 2024. Founded in 1949 as a response to the Second World War, it embodies the promotion and protection of European values, namely "human rights, democracy and the rule of law". The European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) are its most remarkable and best-known achievements. So much so that the Council of Europe is often reduced to this essential but reductive aspect. In fact, countless other standards have been adopted under the auspices of this organisation. These standards, which are intended to permeate national legal systems, set the European standards for a common legal order.

In the 75 years of its existence, the Council of Europe has had to adapt to major changes in the political and geopolitical context in which it operates. The creation of the European Coal and Steel Community (ECSC), followed by the European Economic Community and the European Union, has led it to reflect, with varying degrees of success, on its specific role within the European architecture. The dissolution of the USSR led to the swift, if not hasty, integration of a large number of Central and Eastern European countries willing to embark on a process of democratisation that is still ongoing. The massive enlargement of the Council of Europe has had many far-reaching consequences for its functioning and working methods. It has also had an impact on the European Court of Human Rights, which has seen a huge increase in the number of cases brought before it. The resurgence of populism, authoritarianism and nationalism since the 2010s has once again forced the Council of Europe to assess the effectiveness of its actions. The challenge is all the greater given the organisation's limited budget. This reflects a political disengagement on the part of its member states, which can also be seen in the fact that some of them no longer adhere to all European values and ostensibly refuse to implement Council of Europe standards, including the rulings of the European Court of Human Rights. In this context, the Council of Europe has embarked on a major reform process, which is still ongoing. The armed aggression by the Russian Federation against Ukraine has once again changed the geopolitical context in Europe to such an extent that a fourth Summit of the Council of Europe was held in Reykjavik (Iceland) in May 2023.

To date, the Council of Europe has not been able to overcome the many challenges that have tested its effectiveness and even its legitimacy. This may be explained by the Committee of Ministers’ attachment to consensus, even though member states are often divided. Another explanation may be the perhaps disproportionate weight given to geopolitical considerations. All this leads to a political timidity that can sometimes give the impression that member states rely too much on the European Court of Human Rights. However, the Court is not able to overcome structural challenges on its own. 

The aim of the workshop is to make a critical assessment of the Council of Europe's achievements and working methods, to analyse the main challenges it faces and to outline ways of addressing them. It is important to note that the focus of the event will not be on the ECHR and the ECtHR, although the topic will be on the agenda.

Contributions can come from any discipline. They may take a general, cross-disciplinary approach or focus on a particular institution, country or issue. Proposals from young scholars (PhD students and post-doctoral researchers), as well as non-academic contributions and those based on empirical studies are welcome. Proposals that deal exclusively with the case law of the European Court of Human Rights, without placing the subject in the wider context of the Council of Europe, will not be considered. We invite original proposals, as we aim to explore publication options, after peer review.

By way of illustration, and without claiming to be exhaustive, contributions may cover the following topics:

General and institutional aspects

- How constructive are relations between different organs of the Council of Europe; how can synergies be strengthened?

- The reform of the Council of Europe: an appropriate quest for efficiency?

- Should the Council of Europe set more focused priorities? Too many partial agreements?

- The Venice Commission, the Commissioner for Human Rights or the monitoring bodies: how to increase their effectiveness?

- How can the execution of judgements of the European Court of Human Rights be improved?

- Is the Council of Europe a credible player in the European institutional architecture?

Substantive aspects

- The vices and virtues of the Council of Europe’s intergovernmental standard-setting work (e.g. choice of topics, working methods, links with the European Union's standard-setting work)

- The European Social Charter and the Revised Social Charter: is the Turin Process sufficient?

- The Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)

- The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention)

- How can torture, and inhumane and degrading treatment be effectively prohibited in practice?

- What role can the Council of Europe play in environmental protection?

- What is the added value of the Council of Europe in the field of Artificial Intelligence?

- How to overcome political reticence on issues such as migrants’ rights or LGBTQI+?

- Can the Council of Europe protect political prisoners, including those in Russia and Belarus?

- The vices and virtues of joint European Union/Council of Europe programmes

Geopolitical approach

- The implications for the Council of Europe of a future enlargement of the European Union

- The Council of Europe's relations with specific states (e.g. the Russian Federation, Turkey, Azerbaijan)

- The Council of Europe and (frozen or military) conflicts in Europe

Funds are available to cover travel and accommodation costs for workshop participants, where necessary. If this is the case, please include a reasoned request with your proposal.

Timetable and submission procedures

24 April 2024: Submission of a 1,000-word abstract, in French OR English. Authors are requested to include their full name, title and functions, as well as the institution(s) with which they are affiliated. Authors are also encouraged to mention any difficulties they may have in following the debates in French AND English. Projects can be submitted to: anca.ailincai@univ-grenoble-alpes.fr 

31 May 2024: Response after blind evaluation by the Scientific Committee

10 November 2024: all selected participants will be invited to submit the written version of their contribution before the conference.

Week of 2 to 6 December 2024: Workshop in Grenoble'