ESIL Reflection on Brighton

Laurence Helfer of Duke University has posted a very interesting 'reflection' on the website of the European Society of International Law on the outcomes of the Brighton Summit on the European Court. It is entitled 'The Burdens and Benefits of Brighton'. this is the author's own summary of the essay:

In this brief commentary, I first review the Brighton Declaration provisions that reflect the member states’ attempt to rein in the power of Strasbourg judges. I then introduce and defend a proposal to condition access to the new Protocol’s “benefits” to those member states that are adequately shouldering the “burdens” of more deeply embedding the Convention and ECtHR case law in their national legal orders. I conclude by identifying alternative ways to implement this proposal and discuss their potential benefits and drawbacks.

Important Judgment on Statelessness

Earlier this week, the Grand Chamber of the Court delivered its judgment in the case of Kuric v. Slovenia and found violations of Articles 8, 13 and 14 ECHR. The Court found that Slovenia had violated the rights of a group of residents of Slovenia, by depriving them of their status as permanent residents in the months following Slovenia's declaration of independence in the early 1990s. This measure affected tens of thousands of people which were know as the ''erased'' people. In the Court's view, the measures had disportionately affected Roma and other minorities. The original Chamber judgment (of 2010) in the same case also found violations of the Convention, but the Grand Chamber went even further by finding a violation of the ECHR's non-discrimination provision (Article 14) in conjunction with the right to privacy (Article 8).

Interestingly, this judgment is also a pilot judgment even though the number of similar pending applications before the court is not huge. The Court pointed, however, at the potential influx of cases and indicated that Slovenia should set up a national compensation scheme within a year. In the meantime, the Court decided to adjourn all similar applications.

Click here for the positive assessment of the Open Society Justice Initiative, which submitted a third party intervention in the case. It calls the judgment "an important milestone in strengthening international norms against statelessness."

The Court's press release can be found here.

New Judges Elected in Respect of Sweden, the UK, the Netherlands, the Czech Republic and Poland

Yesterday and today, the Parliamentary Assembly elected five new judges to the European Court of Human Rights. Yesterday, the new Swedish judge was elected: Helena Jäderblom. She is currently a Justice at the Supreme Administrative Court. Today, the four others were elected. For the United Kingdom, Paul Mahoney was elected, currently a member of the board of appeals of the European Space Agency, but much more known probably as one of the European Court of Human Rights' former registrars (2001-2005). For the Netherlands Johannes Silvis was elected, Advocate-General at the Supreme Court of the Netherlands. In respect of the Czech Republic, the new judge will be Aleš Pejchal, a lawyer who represented several applicants before the Court and is currently the vice-president of the Czech Bar Association. Finally, the new Polish judge will be Krzysztof Wojtyczek, professor at Jagiellonian University and senior legal advisor at the Constitutional Court of Poland. Congratulations to all!

One may note from the voting results that some judges were elected by extremely small margins of just one or two votes (in the cases of Poland and the Netherlands respectively). More notable is that elections in respect of several other countries have been delayed. As a progress report of the Bureau of the Parliamentary Assembly of last Monday shows, the procedures for Bosnia and Herzegovina and for the Russian Federation were suspended after one candidate for each withdrew. The authorities of both countries were invited to nominate a new third candidate. Furthermore, the sub-committee of the Assembly responsible for interviewing the candidates rejected the list of candidates for Croatia. It is not clear from the progress report on which basis this happened. To be continued!

New Version of HUDOC Search Engine Launched

This week the Court launched a new version of the what is probably its key online resource: the HUDOC case-law database, which includes judgments and decisions of the European Court of Human Rights, decisions and reports of the former European Commission of Human Rights and resolutions of the Committee of Ministers. The old version had, although it was still much more user-friendly than most other databases of human rights institutions, become unwieldy by the large number of results that most searches produced. The main asset of this new version is the very easy way through which search results can be narrowed down through filters, which include country, language, level of importance, Convention article, whether a violation was found or not, but even which section of the Court decided in the case or which judges were involved. As in the past, the search engine works in both English and French. For those most accustomed to the standard search functions of the old HUDOC, including searching by application number, I would recommend to click on the option 'Advanced Search'  in the upper right corner.

As the Court's President stated at the launch:

The Court attaches great importance to the effective dissemination of its case-law and we believe that this new version of HUDOC will help legal professionals throughout the Council of Europe States to search the Court’s case-law more rapidly and more efficiently. This makes a major contribution to better domestic implementation of theConvention.

HUDOC, after an extensive and ongoing translation effort in the past few years, now includes over 1500 translations of key judgments in 21 languages. These are now also easily to be found through the new interface - one can simply filter the search results by language (in the menu on the left).

An online manual and video tutorials will be released in the coming weeks. Thanks to Cyprus, Denmark, Germany and Norway who provided the funds for this new version of HUDOC. Enjoy discovering all the new possibilities!

Special Account for the European Court of Human Rights

To be able to do more work, the Court is constantly trying to increase its efficiency, but in addition it still needs additional capacity in terms of personnel. In order to enable that, a new special account for the Ccourt has been announced on which state parties to the ECHR can voluntarily contribute. These will be used to deal with high priority cases more speedily. Although such an initiative is of course welcome, it is also sad that the states are not able to increase the budget of the Court for the same purposes together. This is the press release:

The Secretary General of the Council of Europe and the President of the European Court of Human Rights announce the opening of a special account for the Court and call for voluntary contributions from member
States.

The special account is part of the follow-up to the High Level Conference on the Future of the European Court of Human Rights held in Brighton in April 2012 and the contributions will essentially be used to recruit lawyers to deal with the Court’s backlog of priority cases.

In a joint statement in Strasbourg today the Council of Europe’s Secretary General Thorbjørn Jagland and the Court’s President Sir Nicolas Bratza said: “At the High Level Conference in Brighton a number of States indicated their willingness to provide additional financial support to the Court to assist it with its backlog of cases. The contributions paid into this account will be used where they will have the most effect, that is on the cases which have the most impact in terms of identifying and correcting serious human rights abuses throughout the Council of Europe countries and particularly where the alleged victims have been waiting too long for a decision”.

The aim of the fund is therefore to provide additional resources to eliminate cases at the top of the priority queue. At the moment, some 2,000 priority applications have been pending for more than one year without having been communicated1 to the relevant Government for observations. A further 600 applications were communicated to the Government more than two years ago and are still pending before the Court.

It is, however, open to donor States to stipulate that sums they have contributed should be used for a specific purpose such as dealing with applications against them. The Secretary General and the President further said: “The entry into force of the Single Judge procedure and the adoption of new working methods by the Court’s Registry have already proved highly effective in reducing the backlog of inadmissible cases and therefore the waiting time for applicants with inadmissible applications. We now have to pursue these efforts in relation to other categories of cases.”

Manual on ECHR and the Environment

The Council of Europe has just published the second edition of its ''Manual on Human Rights and the Environment'', both in English and French. The book covers how both the European Court (the largest part of the publication) and the European Committee of Social Rights have dealt with environmental issues. This is the abstract:

Human rights and the environment have become increasingly interconnected. This updated manual seeks to contribute to a better understanding of this relationship by taking into account the new pertinent case law of the European Court of Human Rights. While the European Convention on Human Rights does not guarantee a specific right to a healthy and sound environment, the general standards deriving from it may nonetheless also apply to environmental matters. The European Court of Human Rights regularly examines complaints in which individuals argue that a breach of their Convention rights is the result of adverse environmental factors. 

This manual also takes account of the relevant decisions of the European Committee of Social Rights which has interpreted the right to protection of health under the European Social Charter as including a right to a healthy environment.

Examples of good national practices have been compiled on the basis of the contributions of several member states and included in an appendix to the manual.

The aim is to present the emerging principles on environmental protection in a systematic and accessible way. 

European Parliamentarians Welcome Resuming of EU - Council of Europe Talks

The joint informal body of the Parliamentary Assembly of the Council of Europe and the European Parliament (of the EU) hase welcomed the Committee of Ministers' decision to resume talk on EU accession to the European Convention on Human Rights. In a joint press release, which is aimed at keeping the pressure on swift conclusion of the talks high, the following is stated:

A joint informal body of MEPs and Council of Europe parliamentarians has welcomed the prospect of talks resuming on EU accession to the European Convention on Human Rights (ECHR).


Last week the Committee of Ministers of the Council of Europe decided to pursue negotiations with the EU with a view to finalising the legal instruments setting out the modalities of accession. The high-level political negotiations stalled in the Autumn of 2011 after the completion of most of the technical work on accession.

The two co-chairs of the Joint Informal Body, Pietro Marcenaro and Carlo Casini, said it was “of the utmost importance” that these negotiations reach a speedy conclusion and that the momentum towards an agreement is not lost.

“EU accession to the ECHR is crucial with a view to securing a common space for human rights protection across the European continent,” they said. “It is thus essential that the modalities of such accession are completed at a political level as rapidly as possible, and that all outstanding questions are clarified.”

The two co-chairs recalled that agreement had already been reached on arrangements to ensure the European Parliament’s participation in the sittings of the Parliamentary Assembly when the latter elects judges to the European Court of Human Rights.

They added: “For its part, the Joint Informal Body will continue to follow the negotiations closely in order to take stock of matters and, as appropriate, prompt progress at the political level, offering as it does a useful platform for the two parliamentary institutions to share information and co-operate on issues of common concern.”

The Joint Informal Body, which brings together members of the Parliamentary Assembly of the Council of Europe (PACE) and members of the European Parliament, was holding its third meeting in Paris. It was created in 2011.

Book and Launch on ECHR and Homosexuality

Paul Johnson of the University of York has written a book entitled 'Homosexuality and the European Court on Human Rights' to be published in October by Routledge. This is the abstract:

This is the first book-length study of the Court’s jurisprudence in respect of sexual orientation. It offers a socio-legal analysis of the substantial number of decisions and judgments of the Strasbourg organs on the wide range of complaints brought by gay men and lesbians under the European Convention on Human Rights. Providing a systematic analysis of Strasbourg case law since 1955 and examining decades of decisions that have hitherto remained obscure, the book considers the evolution of the Court’s interpretation of the Convention and how this has fashioned lesbian and gay rights in Europe. Going beyond doctrinal analysis by employing a nuanced sociological consideration of Strasbourg jurisprudence, Paul Johnson shows how the Court is a site at which homosexuality is both socially constructed and regulated. He argues that although the Convention is conceived as a ‘living instrument’ to be interpreted ‘in the light of present-day conditions’ the Court’s judgments have frequently forged and advanced new social conditions in respect of homosexuality. Johnson argues that the Court’s jurisprudence has an extra-legal importance because it provides an authoritative and powerful discursive resource that can be mobilized by lesbians and gay men to challenge homophobic and heteronormative social relations in contemporary societies. As such, the book considers how the Court’s interpretation of the Convention might be evolved in the future to better protect lesbian and gay rights and lives.

The book will be launched on Thursday 1 November at 7pm in bookshop Gay's the Word in London. The author will introduce the book, followed by a discussion. People interested in joining can send an email to paul.johnson at york.ac.uk . Congratulations, Paul!

Progress in EU-ECHR Negotiations?

As MultiRights Blog reports, the negotiations on the European Union's accession to the ECHR seem to have reached a new phase. Last week, the Council of Europe's Committee of Minister instructed the Steering Committee for Human Rights to pursue negotations with the EU in order to finalise the agreement. This, the Committee indicated, should be done without delay. The decisions of the Committee of Ministers can be found here.

New Policy on Reports of Judgments and Decisions

Even though most people will use the HUDOC database these days to find cases, the sheer amount of output of the Strasbourg Court means that authoritative selections of case-law remain very valuable. The Court's own Reports of Judgments and Decisions are the most important source in that respect. Recently, the Court has changed its policy regarding which judgments and decisions it will include in those reports. It will concentrate even more on only the most important decisions and judgments. The jurisconsult of the Court - the person responsible for case-law monitoring and preventing case-law conflicts - has made what the Court calls "a more fine-tuned selection." for 2007-2011 as well as for the first three months of 2012. The lists of selected cases can be found on this special page of the Court's website. It shows, for example, that in the first few months of this year, in the Court's own eyes the most important cases were: Stanev, Von Hannover, Sitaropoulos and Others, Hirsi Jamaa and Others, Konstantin Markin, Aksu, and Austin and Others.