Two New Academic Articles on the ECHR

As I reported yesterday, the Court looked at its achievements and challenges at a seminar this week. For those interested in reading an external critique of the current problems facing the Court, the following recent article from the Human Rights Quarterly is recommended: Steven Greer, What's Wrong with the European Convention on Human Rights? (Volume 30, no. 3, 2008). This is the abstract:

The European Court of Human Rights faces a potentially fatal case overload crisis. But this is not the only problem confronting the European Convention on Human Rights. The underlying difficulty is the reluctance of the Strasbourg institutions, and others, to acknowledge that the Convention's main function is not to provide remedies for each deserving applicant. It is, rather, to promote convergence in the operation of public institutions at all levels of governance in Europe by articulating an abstract constitutional model which member states should then apply in their own domestic constitutional systems. This article seeks to make the case for "constitutionalization" and to explore the policy implications.

The same issue of the Quarterly contains another article on a highly topical issue in the ECHR context: Jill Marshall, Conditions for Freedom?: European Human Rights Law and the Islamic Headscarf Debate. Here is the abstract:

This article investigates women's choices and personal freedom by reference to the European Court of Human Rights' jurisprudence on national laws banning the wearing of the Islamic headscarf by adult women. The article focuses on how ECHR law is used and misused to shape women's autonomy rights, with specific emphasis on how women's rights to develop and express their own individual identities are impacted under this legal regime. The reasoning of the case law is criticized: no evidence was produced that the wearing of the headscarf was anything other than the women's choice; furthermore, preventing them from wearing it restricts their autonomy in a way inconsistent with other jurisprudence of the same court.

10 Years of the New Full Time Court

Yesterday, the Court organised a seminar to commemorate that in a few weeks from now, on 1 November, it will be exactly ten years ago that Protocol 11 to the ECHR entered into force. The Protocol merged the European Commission of Human Rights with the Court and the Court became a full time functioning institution. Amongst others, the Court used the seminar to meet up with NGOs. President Costa held two speeches, which can be found here and here (both in French). Webcasts of the meeting can be found here and here. Yes, the audiovisual department of the Court does a lot to keep us all informed!

Another Echo of WW II

Two large scale problems arising from World War II were dealt with by the Court in the same month. Last week, I already reported about the finalisation of the Court's pilot case procedrue in the so-called Bug river cases, concerning Poles who had to leave their homes at the end of the War when parts of Eastern Poland were incorporated into the Soviet Union. As a form of compensation for its lost territories Poland was given parts of Eastern Germany. Thus Poland in effect moved to the West. Many of the Polish refugees from the East settled in these territories. The Germans living in those regions were, in turn forced to flee further Westwards, having to leave behind most of their properties.

Last week the Court declared an application concerning the last group inadmissible. The complainants, united in the legal person Preussische Treuhand Gmbh & Co. KG, had lodged a complaint against Poland. Their main claim was that Poland had violated Article 1 of the Convention's First Protocol (property protection) since the taking of the applicants' properties had no legal basis under international law. The depossessions were, according to the applicants, undertaken in a context of ethnic cleansing. They claimed that this crime against humanity was part of a continuing violation of their rights under the Convention. They had never received any compensation.

The application was declared inadmissible on several grounds. As to the Court's jurisdiction ratione personae, it held that the complained acts (the expulsions) could not be attributed to Poland. As the Court noted, large groups of Germans had been forcibly evacuated by the Nazis towards the end of the War and many others had been forced to flee the approaching Soviet Army. During this period the state of Poland had no de facto or de iure control over the territories involved. In addition the Court held that the situation could not be seen as a continuining violation, as for example in Loizidou v. Turkey (concerning Northern Cyprus), since in this case the formal expropriations were legally valid Polish laws of 1946. Since Poland ratified the ECHR only in 1994, the impugned acts fell outside the Court's jurisdiction. No Polish restitution laws existed on this point. As the Convention does not include a duty to enact restitution laws, the application was also inadmissible ratione materiae.

Although I find the Court's argumentation on the separate points convincing, a small internal incongruency struck me: why does the Court on the one hand hold that Poland cannot be held accountable for the loss of property (since the areas were Nazi or Soviet occupied) and on the other hand consider the Polish expropriation laws of 1946 as defining for its temporal jurisdiction? Are we talking about two different sets of legal facts: the ethnic cleansing and loss of property in practice and the loss of property de iure? Only in that case does the Court's argumentation make sense. If so, then the applicant's lawyers did not have a lucky hand in the construction of their case and its presentation, it seems...

The leading case on the Court's temporal jurisdiction is the Grand Chamber judgment in Blecic v. Croatia (2006). For an analysis of the Court's case law preceding that case and the problem of continuing violations, see my own: A Lifeline in Time - Non-Retroactivity and Continuing Violations under the ECHR, published in the Nordic Journal of International Law, vol. 75 (2006) pp. 63-88 (available at IngentaConnect for subscribers and academic institutions).

Georgian Battleground Moving to Strasbourg

The armed conflict between Georgia and Russia concerning the region of South Ossetia might have been relatively short for a war, the effects of this violence are still being felt. Now, the battleground seems to be increasingly shifting to the courtroom. Georgia already filed an inter-state application against Russia with the European Court of Human Rights and the two states also find themselves facing each other at the International Court of Justice. This is not all, however. Today the European Court announced in a press release that it is being flooded by applications from South Ossetians concerning the August events. As of this week, more than 2,700 individual complaints have already been received. Many concern damages to personal health and property. As the Court's press release dryly notes - maybe in an effort to stem the tide somewhat - this has "has increased the already considerable workload". To my mind, it is not clear to what extent the large number of applications are part of an orchestrated effort, but it will certainly only compound the Court's problems...

Caught in a Minefield

Yesterday, the Court issued its judgment in the Albekov and others v. Russia case which may not only have been a landmark, but also a landmine judgment. Three family members of the applicants, all civilians, had been killed by landmines in a forest near the village of Akhinchu-Barzoy in Chechnya. One of them was bringing in his cattle and when he did not return, two other villagers went to look for him and also got killed by landmines. Russia claimed that the landmines had been planted by armed gangs. The authorities had, however, due to earlier incidents, been aware of the location of the mines. It was on that issue that the European Court focused when assessing the case under Article 2 (right to life): the fact that the authorities knew that the landmines were there was sufficient to give rise to a positive obligation under Article 2 ECHR. Further developing and refining an earlier judgment (Pasa and Erkan Erol v. Turkey of 2006), the Court has now made clear that in this context three kinds of obligations rest upon a State Party. At the very least the authorities should (1) mark and seal off an area of which they know that it contains landmines and (2) comprehensively warn people living in the vicinity of it. This is the minimal obligation. Depending on the circumstances the Court would then look also at a third factor: endeavours to locate and deactivate the landmines. In this case, the Court unanimously found a violation of Article 2 for the state failure to protect the rigth to life. The case thus provides clear guidelines on how states should handle minefields.

Conference on ECHR

The University of Nottingham's Human Rights Law Centre is organising a conference for academics and legal practitioners on topical issues concerning the ECHR. This is the announcement:

The Conference will be held on Friday 14 November 2008, 9am-5pm, in the Great Hall, Trent Building, University of Nottingham.

This Conference will cover issues that will be of interest to academics, students and practitioners alike, highlighting and addressing the following challenges facing the European Convention System:

- Terrorism and the European Convention on Human Rights, by Egbert Myjer, Judge of the European Court of Human Rights;
- The Behrami case: Questions of Jurisdiction and Attribution for UN Action in Kosovo, by Marko Milanovic, University of Cambridge and formerly Associate, Belgrade Centre for Human Rights;
- Islam and the European Convention: The Refah and Sahin cases, by Professor Dominic McGoldrick, University of Liverpool;
- Russian Cases before the European Court of Human Rights, by Sergei Golubok, Lawyer, European Court of Human Rights Registry;
- The European Court of Human Rights’ Approach to Overruling its own Precedents, by Professor Alastair Mowbray, University of Nottingham.

For further information about this event and registration details, please visit the European Human Rights Law Unit. This is the link.

Hearing in Domestic Violence Case

Today the Court held a hearing in a case concerning domestic violence. The applicant, Nahide Opuz, has lodged a complaint against Turkey. The case centres on Opuz' extremely violent husband who gravely ill-treated her and her mother many times and eventually killed her mother. Although the authorities were made aware of the situation, they apparently failed to take any adequate action. The applicant does not only complain about violations of the right to life (Article 2 ECHR) and the prohibition of torture and inhuman and degrading treatment (Article 3 ECHR), but also about discrimination in the sense of lack of protection under Turkish law for women who are victims of domestic violence.

The fact that a public hearing is organised - a relatively rare occurence in Strasbourg - and that the NGO Interights has been given leave to intervene as a third party, both point to the fact that this case is generating a lot of interest both inside and outside the Court. It reflects an increasing awareness that issues of domestic violence are matters of public interest.

This is the link to the hearing. A link to the internet page of Interights on the case, including their legal brief, can be found here. Finally, this is the link to the Court's press release.

The Pilot has Landed

This week the Court concluded its first full cycle in a so-called pilot case procedure. It struck out 176 pending applications in the "Bug River" cases. These cases all concerned claims of applicants who disagreed with a Polish scheme set up to compensate people who had lost their belongings at the end of the Second World War, when the boundaries between the Soviet Union and Poland were changed, causing more than 80,000 Poles to be forced to leave their homes.

The pilot case procedure is a procedure used by the Court to deal with systemic human rights problems which surface in a large number of comparable applications. In such cases the Court selects a "pilot" case and decides in that specific instance, indicating not only what remedies are called for in the individual case, but also how the problem should be dealt with more generally by the country concerned. Pending the outcome of the state's reaction, all other comparable cases are put on a hold.

In the context of the "Bug River" cases, the pilot case was Broniowski. That case was declared admissible in 2002 and the Grand Chamber held in its judgment in 2004 that Poland had violated Article 1 of the Convention's First Protocol (protection of property) and had to amend the compensation scheme to make sure that proper compensation for claimants was put into place. Appropriate action was indeed taken and in 2005 the Court accepted the friendly settlement reached between Broniowski and the Polish state. It expressed its positive attitude towards the general measures that Poland was taking at the time. The real test came, however, when the Court turned to all the comparable pending cases: in 2007 struck out two cases, Wolkenberg and Others and Witkowska-Tobola, out of its list. It is in those decisions that the most elaborate assessment of the Polish compensation scheme can be found. After those two decisions, the door was wide open for striking out large numbers of cases. And now the last batch has been struck out. Of course, it is still up to the Council of Europe's Committee of Ministers to monitor the situation in Poland on this account. But for the time being, the pilot case procedure seems a relatively efficient way to deal with at last part of the Court's backlog of cases.

Is this the end of the story? The Court seems to be cautious; in its press release the following can be read:

Similar complaints continue, however, to be lodged every month and as a result the Court is called upon to give individual decisions in cases where the Convention issue has been resolved at domestic level. The Court does not therefore rule out in the future declining to examine such cases.

Certainly to be continued....

Article on Rights of 'Travelling Peoples'

The most recent issue of the Human Rights Law Review (volume 8, no. 3, 2008) contains an article on one of my areas of particular interest: Ralph Sandland, Developing a Jurisprudence of Difference: The Protection of the Human Rights of Travelling Peoples by the European Court of Human Rights. It traces the changing stance of the European Court of Human Rights on the duties State Parties to the Convention have vis-à-vis travelling (minority) peoples. The cases on Roma rights are a prime example of the issue. This is the abstract:

This article reviews the development of the jurisprudence of the European Court of Human Rights (the Court) relating to the rights of Travelling Peoples. In its early case law on this topic, the Court's approach, in accordance with the principle of the rule of law, was to ensure equality of treatment. This approach appears laudable, but in practice it functioned as a failure to protect difference, or identity, especially minority identities; or, when difference was recognised, it was recognised as a problem. However, the Court has more recently undertaken a reappraisal of its approach. In essence, and although there may be scope for further development, the Court has moved to abandon a jurisprudence of sameness or equality in favour of elaborating a jurisprudence of difference. The Court now recognises that law applies differentially by reference to culture and ethnicity, and also that there are various positive obligations under the European Convention of Human Rights (the Convention) to protect difference, or minority identities, from both direct and indirect discrimination.

The article is available on the site of the Human Rights Law Review for subscribers.

Judgment on Apology of Terrorism

Cartoons are, as we have seen in recent years, not always completely innocuous. Today the European Court of Human Rights delivered its judgment in a case focusing on the controversy about a cartoon depicting the terrorist attacks on the World Trade Center in New York with the text "We have all dreamt about it ... Hamas did it". The cartoon was drawn on 11 September 2001 itself, just hours after the attacks, by French cartoonist Denis Leroy, and published two days later in a Basque magazine with its basis in the southwest of France. The French authorities prosecuted both the cartoonist and the magazine and national courts fined Leroy with a 1500 euro fine for complicity in the defense or apology of terrorism.

Leroy tried his luck in Strasbourg, complaining that the imposition of the fine was in violation of Article 10 ECHR (freedom of expression). The Court, unanimously, disagreed. It held that the interference in this case served the legitimate aims of public safety and the prevention of disorder or crime in the sensitive context of the fight agaisnt terrorism. In a telling obiter dictum, the Court comments that the attacks of 11 September 2001 yielded a "global chaos". Although the applicant claimed that his cartoon merely expressed his political stance of anti-Americanism in a satirical manner and served to illustrate the decline of "American imperialist power", the Court noted that the cartoon also glorified the destruction of America by violent means. According to the Court, the caption accompanying the cartoon reflected Leroy's solidarity with the alleged attackers of the WTC and a favorable opinion on the large-scale violence used against civilians. The Court also noted the context: the drawing and publication in the immediate aftermath of the attacks and possible impact of such a message in a politically sensitive region, the Basque country. The reactions of readers of the magazine, which were subsequently published, pointed in that reaction. The Court, in conclusion, did not judge the fine to be excessive.

Interestingly, France tried to have the case declared inadmissible for abuse of rights (Article 17) by the applicant. This Article has thusfar mainly been used in the context of Holocaust denial. On this aspect, the Court disagreed with the State Party. It considered that the core message of the cartoon, the destruction of American imperialism, does not concern the destruction of fundamental rights nor can it be equalled to expressions of racism attacking the underlying values of the Convention. Moreover, the Court held that even if the expression had been labelled as an apology of terrorism under national law, the cartoon did not amount to an absolute justification of terrorism which would deprive it of the protection of Article 10.

Considering the fact that laws on the prohibition of the apology of violence (and especially terrorism) are currently being debated in many European countries, this judgment may be of considerable impact.

The judgment in this case is available only in French. A short report on this issue by the famous French newspaper Le Monde can be found here.