Human Rights Conference in Newcastle

It's still some months away, but the University of Newcastle is organising a conference on 23 January 2010 entitled 'Human Rights – A Drop of Liberation or Fig Leaf of Legitimation?', which will partly be devoted to ECHR-related issues. Here is the announcement:

Confirmed Speakers:
* Professor David Kennedy, Harvard University - ‘The International Human Rights Movement: Still Part of the Problem?’
* Professor Keith Ewing, Kings College London - Title to be confirmed
* Professor David Bonner, University of Leicester - ‘If you cannot change the rules of the game, adapt to them: United Kingdom responses to the restrictions set by Article 3 ECHR on “national security” deportations’
* Professor Christine Bell, University of Ulster - ‘Human rights activism, expertise and academic inquiry: beyond legitimation v emancipation - a self-critical reflection’
* Steven Wheatley, Reader, University of Leeds - ‘The problematic authority of international human rights law.’

This symposium draws upon the proliferation of academic commentary asserting that the international human rights system is in a state of crisis in the first decade of the twenty-first century, a discourse which requires an evaluation of both the impact and future direction of the human rights project. With papers from world leading authorities on human rights, this symposium provides a forum for the re-evaluation the effectiveness of human rights as an element of international law and in the domestic context of the United Kingdom at the end of a decade when the human rights project has faced renewed and novel challenges. Moreover, this Symposium draws together skeptics and supporters as well as disparate strands of transatlantic scholarship.

A limited number of places for delegates are available on a first-come-first-served basis, at a cost of £30 per head (or £10 per head for full-time postgraduates), inclusive of lunch and refreshments. Full details of the Conference Programme are available on the Newcastle Law School Website. For further details regarding this symposium, please contact Dr Rob Dickinson (r.a.dickinson at ncl.ac.uk) or Dr Ole W. Pedersen (ole.pedersen at ncl.ac.uk).

Satire and the Freedom of Expression

This is a picture of a carnival parade in which US president Barack Obama is shown with wings carrying the text of his campaign phrase "Yes we can", to which the figure Europa is clinging with the text "We too". Benevolent humour with a clear reference to a topical political issue. Two cases of comparable satire were decided by the Court recently. In both cases the authorities involved had violated the freedom of expression in punishing various forms of satire.

The first was the case of Kuliś and Różycki v. Poland (Appl.no. 27209/03), decided by the Court on 6 October. This concerned the publication of cartoons in a children's magazine. The cartoons were a parody on an advertising campaign by a potato crisps company, Star Foods. The cartoons depicted a child talking to a famous dog cartoon character for children, Reksio, saying: "Don't worry, I would be a murderer too if I ate this muck!". It was a direct reaction to the company's advertising campaign in which the popular character Reksio was oddly called a murderer (other parts of the campaign referred to sexual behaviour or alcohol or were even racist). The potato crisps producer was not amused by the parody and sued the magazine. The publisher and editor were sentenced by domestic courts to publicly apologize for the cartoons and to pay an amount of money to a charity. The main justification given by the Polish courts was that the cartoons discredited the crisps unjustifiedly. The defence of the applicants was that the cartoons were meant as a satirical comment on the advertising campaign, not on the product as such. The European Court agreed with them, emphasizing that a certain degree of "exaggeration or even provocation" was permissible for the press, especially when it concerned a question of public interest. In this case, the Court held that in para. 38 "that the applicants' aim was not primarily to denigrate in the minds of readers the quality of the crisps but to raise awareness of the type of slogans used by the plaintiff company and the unacceptability of such tactics to generate sales."

The other case is directly related to carnival itself. In Alves da Silva v. Portugal (Appl.no. 41665/07), the applicant was prosecuted and convicted for driving around during carnival with a puppet representing the mayor of Mortágua with symbols of corruption on the puppet and for broadcasting a pre-recorded message of satire on the Mayor's suggested illegal acts. The applicants was ordered to pay a fine, damages and costs of over 4,000 euros. Again, the European Court decided in favour of the applicant and held that the expressions were clearly satirical and in the context of carnival could hardly be taken literally. It stressed once more the importance of satire in public debate. One may add that the mayor of this Portuguese town has not at all understood the essence of carnival which very essence is - as any anthropologist could have told him - a reversal of roles, a topsy-turvy festival in which the powerless criticise the powerful.

The judgments can be found on the HUDOC search engine and the press releases can be found here. The second judgment is only available in French.

Both cases could be laughed off as bizarre instances of the kind of situations that reach Strasbourg. But equally, they point to a worrying development in various European countries in which commercial or political interests are attacking even the most innocuous expressions. In that respect, it is good that the European Court is taking jokes seriously.

Bringing Rights Home

At a round table discussion held in Bled in Slovenia on 21-22 September, the Court's registrar gave his views on how the Court could deal with repetitive cases pending further reforms. Although these are his personal views, they do give a good insight in the main thrust of the discussion taking place currently. The full text of the speech 'Bringing Rights Home - or how to deal with repetitive applications in the future', can be found here.

Many thanks to professor Rick Lawson of Leiden University for pointing this out to me!

Hunger Strike and Interim Measures

The EU Observer reports today about a hunger strike in Romania, related to the massacres which took place in 1989 during the chaotic days of the fall of the Ceaucescu regime. Teodor Maries, the head of an organisation of family of victims of those days, is in hunger strike in order to put pressure on the Romanian authorities to release the secret service files which could shed more light on what happened precisely twenty years ago and on whom could be held to account. The issue of the massacres has been brought to Strasbourg in a case in which the Court has issued an interim measure. This is what the EU Observer reports:

According to the press office of the Strasbourg-based European court for human rights, the Romanian authorities have a deadline of 30 October to grant Mr Maries access to all the "relevant" files in his case. An emergency procedure, the so-called Rule 39, was applied in his case due to the urgency of Mr Maries' health condition.

I was not yet able to find a press release of the Court itself or any information on its website, but this is certainly a sad and dramatic case to be followed. The full article on EU Observer can be found here.

HRW Report on Russia and ECHR

The NGO Human Rights Watch has published a report on Russia’s implementation of Strasbourg judgments relating to Chechnya: "Who Will Tell Me What Happened to My Son?". The report investigates a number of cases in which the European Court found violations of the Convention and specifically delves into the aftermath. What happened after the judgments were issued. The short answer is saddening: almost nothing. The report shows that not a single person was brought to justice afterwards. It seems that thusfar Russia limits itself to paying the required compensation to the victims, but stops there. The report mentions that "in a troubling new trend, in several cases Russian investigative authorities have flatly contested the court's findings of state responsibility for human rights violations in Chechnya, even in cases in which those officials participating in the operations that led to violations or their superiors are known and named in court judgments." Hopefully the Committee of Ministers and other organs of the Council of Europe will use the evidence presented in this and other reports to make sure that Russia will start to implement the Court's judgments much more effectively. This is the abstract of the report:

This 38-page report examines Russia's response to European Court judgments on cases from Chechnya. In almost all of the 115 rulings, the court concluded that Russia was responsible for extrajudicial executions, torture, and enforced disappearances, and that it had failed to investigate these crimes. In the 33 cases researched by Human Rights Watch, Russia has still not brought a single perpetrator to justice, even in cases in which those who participated in or commanded the operations that led to violations are named in the European Court judgments.

The press release of Human Rights Watch can be found here.

New Issue EJML on ECHR and Migration Law

The newest issue of the European Journal of Migration and Law (Vol. 11-3, 2009) is almost entirely dedicated to the European Convention on Human Rights. These are the contents:

* The European Court of Human Rights and Immigration: Limits and Possibilities, pp. 199-204(6), Authors: Battjes, Hemme; Dembour, Marie-Bénédicte; Hart, Betty de; Farahat, Anuscheh; Spijkerboer, Thomas; Walsum, Sarah van.
* The Soering reshold: Why Only Fundamental Values Prohibit Refoulement in ECHR Case Law, pp. 205-219(15), Author: Battjes, Hemme
* Still Silencing the Racism Suffered by Migrants . . .The Limits of Current Developments under Article 14 ECHR, pp. 221-234(14), Authors: Dembour, Marie-Bénédicte
* Love Thy Neighbour: Family Reunification and the Rights of Insiders, pp. 235-252(18), Author: de Hart, Betty.
* The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants, pp. 253-269(17), Author: Farahat, Anuscheh
* Structural Instability: Strasbourg Case Law on Children's Family Reunion, pp. 271-293(23), Author: Spijkerboer, Thomas.
* Against All Odds: How Single and Divorced Migrant Mothers were Eventually able to Claim their Right to Respect for Family Life, pp. 295-311(17), Author: van Walsum, Sarah.

Articles are accessible for subscribers through IngentaConnect.

Thanks to professor Marie-Bénédicte Dembour of the University of Sussex for notifying me of this!

New Book on Terrorism and ECHR

Intersentia has just published a new book on terrorism. The book includes a strong ECHR component: Anna Oehmichen, 'Terrorism and Anti-Terror Legislation: The Terrorised Legislator? A Comparison of Counter-Terrorism Legislation and Its Implications on Human Rights in the Legal Systems of the United Kingdom, Spain, Germany and France'. This is the abstract:

The present volume deals with terrorism, both the legislative reactions to it and its impact on human rights. It is argued that the preservation of human rights is vital for the prevention of terrorism, encompassing state and non-state terrorism alike. Further, the study shows that legislators tend to disregard fundamental human rights when confronted with terrorism. They are “terrorised” themselves by the incident and risk to overreact.

After an historical account of selected (pseudo-?)terrorist movements throughout time and space, an inventory of anti-terror legislation in four European countries within the last forty years follows. In this context, the author examines the role of the judiciary with a special focus on the European Court of Human Rights in Strasbourg. As a result, we get a complex view on what happened with regard to terrorism and anti-terrorism in different European countries in the past and is happening at present, and what this means for human rights. This allows us to put contemporary anti-terror legislation into perspective. How have different governments dealt with terrorism in the past? How has the law developed after September 11th 2001? Which lessons can be learned, and what can we expect in the future?

A table of contents can be found here. The book is published in the dissertation series of the Netherlands School of Human Rights Research whose new website, in which I was involved, was just launched last week. The site also includes a list of expertise which can be helpful in finding ECHR experts in the Netherlands.

Grand Chamber Judgment on Disappearances

Its been three weeks now, but the Grand Chamber judgment of the Court in Varnava a.o. v. Turkey is important enough to highlight here. The case concerns a number of disappearances which occurred in 1974 during the the armed conflict on Cyprus. The disappeared persons were last seen in areas under the control of the Turkish militrary. Only very recently, in 2007, the bodily remains of one of the disappeared was found and identified.

Largely in line with the findings of the earlier Chamber judgment of 2008, the Grand Chamber found violations of Articles 2,3 and 5 ECHR. But in contrast to the Chamber, it did award the applicants just satisfaction for non-pecuniary damages.

One of the main points of discussion in this case was a question of admissibility: the interpretation of the rule that an application normally needs to be lodged within six months after exhausting domestic remedies. The Grand Chambwer tried to clarify its case law on this point, but did not entirely succeed in that. Rather it came, through intricate argument, to an assessment which is nuanced but not clear-cut. Various judges address this issue in separate opinions, which show how much discussion there must have been on this point.

Another interesting feature is the Court's elaborate referencing to case law from the Inter-American human rights system and the UN Human Rights Committee. In addition, the Court - for one of the first times explicitly - made use of international humanitarian law to strengthen its reasoning under Article 2. In paragraph 185 it held:

As concerns the other seven men, no such documentary evidence of actual detention has been forthcoming. There is nonetheless an arguable case that the other seven men were last seen in an area under the control, or about to come under the control of the Turkish armed forces. Whether they died, in the fighting or of their wounds, or whether they were captured as prisoners, they must still be accounted for. Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict. The Court therefore concurs with the reasoning of the Chamber in holding that in a zone of international conflict Contracting States are under obligation to protect the lives of those not, or no longer, engaged in hostilities. This would also extend to the provision of medical assistance to the wounded; where combatants have died, or succumbed to wounds, the need for accountability would necessitate proper disposal of remains and require the authorities to collect and provide information about the identity and fate of those concerned, or permit bodies such as the ICRC to do so.

One may expect more of this in the years to come, especially with the pending cases concerning the Russian-Georgian conflict of last year. The argument to use international humanitarian law was put forward by Cyprus, as an intervening state in the case. All parties, by the way, were supported by legal advice of the highest caliber: Jochen Frowein for Turkey, Ian Brownlie for the applicants, and Françoise Hampson for Cyprus.

Four concurring opinions and one dissenting opinion are attached to the judgment. The press release in English can be found here.

RSS Feeds by the Court

The Court added a few features to its website last week which makes it even easier to keep track of its work. Apart from existing feeds on news, webcasts of the Court's hearings, bulletins of the Court's library, and case information notes, there are now also feeds on the most recent judgments and decisions. The good thing is that the latter can be suited to the preferences of the users: either judgments or decisions or both, and either all of them or only the ones with importance levels 1 and 2. In addition, one can choose to receive feeds on cases concerning specific countries.

What's more, and this should help the implementation and use of the Court's judgments in national jurisdictions, the Court plans to put translations of a selection of cases on its website. One may presumre this would mostly concern translations into the language of the defendant state - which would be very useful!

Better Working Conditions for ECHR Judges

The Strasbourg docket may be filled to the brim and the work of the judges very demanding, but their status and conditions of service has now at least become more clearly regulated. On 23 September the Committee of Ministers adopted Resolution CM/Res(2009)5 'on the status and conditions of service of judges of the European Court of Human Rights and of the Commissioner for Human Rights'. Amongst others, as far as I am aware, this for the first time introduces a pension scheme for the Court's judges. In addition it regulates other conditions of service, bringing them much more in line with those of personnel working for the Council of Europe.