Winter School on the ECHR and Non-Discrimination in Italy

The University of Bologna is organising a so-called Winter School on the topic "The European Convention on Human Rights (ECHR): The Principle of Non-Discrimination" from 13 to 17 January 2014. It will be held at the University's School of Political Science in Forlì. Speakers include the Court's former President J. P. Costa, judge G. Raimondi, and professors E. Dubout (Paris) and E. Brems (Ghent). It is co-organised with the Institut des droits de l'homme (Strasbourg) and the High School of Economics - Moscow.Applying is possible until 18 November, 2013.

Call for Papers on ECHR and Economic Crisis

The Cyprus Human Rights Law Review has issued a call for papers on the theme Recourse to the European Human Rights Law framework in response to the economic crisis which will result in a special issue of the journal. The deadline is 30 November 2013. Here is the full call:

The economic crisis has tested much more than the financial balances of banks, governments and individuals either in their capacity as savers, share-holders, pensioners, employers or employees. It brought about a series of social and political changes posing a real test for human rights, solidarity and democracy. It has exposed the most vulnerable to additional hardship and has given ample opportunity for various forms of extremism to flourish often resulting in the victimization of scapegoats. It undermines not only the guarantees of economic, social and cultural rights, but also those of civil and political rights. As history has taught us, noted Francoise Tulkens in her speech marking the opening of the current judicial year for the European Court of Human Rights, these trends pose a real threat to the twin pillars on which the Convention is based: democracy and the rule of law.

The impact of the crisis on obligations arising from the European Convention of Human Rights (‘ECHR’) and the European Social Charter is multi-faceted and extends to much more than the effects of the austerity measures experienced in a number of Council of Europe (‘CoE’) Member States such as unprecedented cuts on salaries and pensions and the decreasing availability of social benefits. Member States -particularly those most struck by the crisis like Greece, Cyprus, and Italy- face serious challenges in complying with the ECHR and European Social Charter, for instance in ensuring that no one depending on a social assistance scheme is left in conditions of extreme poverty; providing where required adequate housing and ensuring that any evictions,including of home owners defaulting on their mortgages, remain lawful; respecting the rights of migrants and asylum-seekers in an increasingly hostile environment as a result of the rise of political extremism; ensuring that any dismissals remain fair and that all necessary procedural safeguards remain effective; guaranteeing an effective right of access to justice in the face of new challenges varying from cuts on legal aid budgets and extending to jurisdictional issues arising in claims against the implementation of agreements with the “Troika”. The crisis has also intensified tensions arising from decision-making in what is nowadays often perceived as the Ivory Tower of Brussels and amplified a certain lack of understanding experienced by northern Europeans towards southern Europeans and vice versa. In this climate, it seems that support for European integration can no longer be taken for granted. In this context, the Editorial board of the Cyprus Human Right Law Review decided to resort to the framework of European Human Rights Law for assistance and devote the Review’s forthcoming issue to the economic crisis.

The present Call for Papers seeks to
(a) Solicit expert opinions on the impact of the economic crisis on the human rights obligations of CoE Member States, particularly addressing the issues highlighted above;
(b) Explore specific applications of the European human rights law framework in litigation arising as a result of the economic crisis;
(c) Explore means of managing the increase of political extremism challenging respect to human rights.

Interested authors are invited to submit an abstract of their proposed paper by 11 October 2013 to info@ehrli.org. The abstracts should be no more than three pages long and be in English. Earlier submissions are welcome. The abstracts will be reviewed by members of the Cyprus Human Rights Law Review’s Editorial and Scientific board and a number of authors will be invited to submit their final papers of no more than 15,000 words by 30 November 2013. Please note that already published papers will not be eligible for consideration.

New ECHR Publications and New Publisher for Court's Report Series

Returned from summer break, I am starting off with a short overview of a number of recent publications on the ECHR.  The new publications on the ECHR are:

* Andrew Drzemczewski, 'L'élection  du juge de l'Union européenne à law Cour européenne des droits de l'homme', Revue trimestrielle des droits de l'homme, no. 195 (2013) pp. 551-563.

 * Monika Ambrus, 'The European Court of Human Rights and standards of proof in religion cases', Religion and Human Rights, vol. 8, no. 2 (2013) pp. 107-137.

* Virginia Mantouvalou, 'Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation', Human Rights Law Review, vol. 13, no. 3 (2013).

* From last year, but I had not noticed it earlier: C. Stubberfield, 'Lifting the organisational veil: positive obligations of the European Union following accession to the European Convention on Human Rights', Australian International Law Journal, vol. 19 (2012) pp. 117-142.

* And on the online resource Open Democracy, Marco Duranti of the University of Sydney has published 'Strasbourg Court is Anti-Democratic Just As Its Founders Intended'.

Secondly, there is a new publisher for the Court's official series of leading cases (which were previously published by Carl Heymanns Verlag), the Reports of Judgments and Decisions: the Dutch publisher Wolf Legal Publishers. This is the new publisher's own information on the series:

This series is an official publication of the Court’s leading judgments and decisions identified by the Court’s Jurisconsult and formally selected by the Bureau, composed of the Court’s most senior judges. The composition of the Reports for the years 2008 to 2013 is available on www.echr.coe.int (under Case-
Law).

The Reports are designed primarily for legal professionals, libraries and academics and are edited by the Court’s Registry. Each volume contains a series of cases or extracts of cases, preceded by a summary prepared by the Registry. Each summary contains a case description, keywords and key notions in addition
to the facts of the case and the Court’s main findings.

Cases are presented in five to six volumes every year, accompanied by an index listing them both alphabetically (by applicant and by respondent State) and analytically (by Article(s) of the European Convention on Human Rights)

The current backlist of the series starts with 2008, for which the full set will be available from September 2013. The set for 2009 will be made available later in 2013, with the 2010 and 2011 sets to follow thereafter. This print series complements the case-law information available on the Court’s website.

Blog Summer Break

The European Court of Human Rights has updated the case-law page of its website (and I am not talking about the search engine HUDOC here). This page now includes the regularly updated Reports of Judgments and Decisions, a selection which permits outsiders to see which part of its jurisprudence is considered to be the most important. It also includes documents with the full list of the Court's judgments from its very beginning, links to translations of judgments, a note on the mode of citation, and information on training and information on the Court's case-law. A whole treasure trove as well as a very easy way into the by now extremely extensive case-law of the Court.

And with this post, the ECHR blog is taking a summer break. Kind regards to all readers, coming from the Danish Institute of Human Rights whose hospitality I am enjoying as a guest researcher currently. Have a great summer!

Book on NHRIs with ECHR Chapter

The book edited by Katrien Meeuwissen and Jan Wouters (both at Leuven University), entitled National Human Rights Institutions in Europe Comparative, European and International Perspectives has now been published. It includes my chapter 'The Court’s Ears and Arms: National Human Rights Institutions and the European Court of Human Rights'. This is the abstract of that contribution:

This book chapter explores the ways through which human rights protection in the European system can be improved by national human rights institutions (NHRIs). NHRIs can play a key role in strengthening the supervision and implementation of the European Convention of Human Rights (ECHR) before, during and after the procedure in Strasbourg. In the first phase, NHRIs can help to better inform the public about the Convention system, specifically about the admissibility criteria, and give advice to potential applicants. During the proceedings before the European Court, NHRIs can bring in an independent national perspective - or as a group of NHRIs, a comparative European perspective - by way of a third party intervention. Finally, once the Court has delivered its judgment, NHRIs can facilitate implementation nationally through their advisory, agenda-setting and watchdog functions. In doing so, NHRIs can be highly important channels of information from the national level to the European Court and vice versa.

ECHR Readings

With temperatures in much of Europe rising higher, here is a new batch of ECHR-related readings. The new edition of the Human Rights Law Review includes two ECHR-related articles:

* Giulio Itzcovich, 'One, None and One Hundred Thousand Margins of Appreciations: The Lautsi Case'

* Ingrid Leijten, 'From Stec to Valkov: Possessions and Margins in the Social Security Case Law of the European Court of Human Rights'

Also, the 2013 edition of the European Yearbook on Human Rights has been published. The ECHR-related contents are the following:

* Brigitte Ohms, Tatjana Cardona, Elisabeth Handl-Petz, Leonore Lange, 'The Human Rights Jurisprudence of the European Court of Human Rights in 2012'

* Jean Paul Jacqué, A propos de Nada contre Suisse: Les résolutions du Conseil de Sécurité devant la Cour européenne des droits de l’Homme'

* Dominika  Bychawska-Siniarka, 'Why (and How) the Committee of Ministers Needs to Be Reformed in Order to Enhance Implementation of ECtHR Judgments'

Asylum Seekers from Iraq Judgments

It is my pleasure to introduce another guest post on the blog, by expert colleague on migration law, Maarten den Heijer, on the European Court's recent Iraq asylum cases:

Court: Christian asylum seekers from Iraq can internally relocate

Maarten den Heijer, assistant professor of international law, University of Amsterdam

With summer recess closing in, the Court gave judgment in no less than eight asylum cases brought against Sweden, all concerning the deportation of failed asylum seekers to Iraq (see the press release summarizing all judgments). In all cases, the Court concludes that expulsion would not violate Article 3 of the Convention (the prohibition of inhuman treatment). Since Iraq continues to be one of the main countries of origin of asylum seekers in the EU, the judgments give valuable guidance for asylum authorities across Europe. They signify, in particular, that the general level of violence in Iraq is – despite the widely reported increase of sectarian violence in the last few months – of insufficient magnitude to indicate a need for protection. And although particularly vulnerable groups such as religious minorities may face a real risk of inhuman treatment upon return, they can have recourse to an internal protection alternative. The latter conclusion may be expected to have considerable ramifications, given the high number of Christian asylum seekers from Iraq in various European countries.

Two of the judgments deal with asylum seekers who argued to be the victim of honour-related crimes. The other six judgments concern members of the Christian minority alleging persecution on the basis of their religion.

In respect of the two honour-crime complaints (the cases of D.N.M. and S.A.), the Court observes that the Iraqi authorities provide insufficient protection against honour-related crimes, noting the high level of social acceptance of this crime in Iraq. However, since the danger emanates from relatives, the Court considers that both applicants can relocate to other regions in Iraq, where family members have no means and connections to find them. In examining the existence of an internal flight alternative, the Court employs the criteria developed in its previous case law (see esp. Sufi and Elmi v the UK), i.e. whether there is a real risk of harm in the other region; whether the person can gain admittance to that region; and whether the general circumstances prevailing in that part allow for a living in relative safety. These criteria correspond to those laid down in Article 8 of EU Qualification Directive 2011/95/EU.

The six other judgments follow up on F.H. v Sweden of 2009, also concerning a Christian from Iraq. In that case, the Court found that there was no State-sanctioned persecution of Christians and that the applicant would be able to seek the protection of the Iraqi authorities if he felt threatened and that the authorities would be willing and in a position to help him. The Court now adopts a different line of reasoning – in all six judgments. It notes that compared to 2008/09, violence against Christians has escalated in Iraq and refers to country assessments indicating that authorities in southern and central Iraq are generally unable to protect Christians and other religious minorities. The Court avoids determining however whether return to these regions would put Christians at a real risk of harm, because it considers that the rights of Christians are generally respected in the three northern governorates (Iraqi Kurdistan), which are relatively safe. The Court extensively examines the possibilities of Christians to relocate there and observes that there are no practical obstacles in that respect.

That the Court accepts a relocation possibility is especially relevant for countries such as the Netherlands, which considers Iraqi Christians to constitute a particularly vulnerable group (lowering their burden of proof for establishing a real risk of harm) for whom no internal relocation alternative exists.

All eight judgments were adopted by the same Chamber and with a voting ratio of five to two. The two dissenting judges Power-Forde and Zupancic question in particular the practical availability of an internal relocation alternative. They note that, whereas in the cases of Salah Sheekh v the Netherlands and Sufi and Elmi the Court spoke of ‘guarantees’ in the sphere of admittance and settlement in the relevant area, the majority now appears to lower the threshold by merely examining the likelihood of safe transit and gaining admittance. The dissenters argue that it follows from previous case law that governments must procure such guarantees before removal is executed, which did not happen in the present cases.

A further peculiarity is that the Court did not decide to join these cases, as provided for under Rule 42 of the Rules of Court. Given the factual similarities and indeed the textually identical rehearsal of general principles, the position of Christians in Iraq and the relocation alternative, one might have expected that the Court would at least have joined the two honor-crime complaints and the six complaints concerning Christians. For those who want to go into detail without having to read them all: M.Y.H. v Sweden was presented as the lead judgment (in the Christian cases).

Three Important Judgments of this Week

As the Court (and this blog) are moving towards summer recess, let me highlight three important judgments the European Court of Human Rights delivered this week (every time with the press release summary of the Court itself - the first two are Grand Chamber judgments):

Vinter and Others v. The United Kingdom (Whole life orders should include the possibility of review but this should not be understood as giving the prospect of imminent release)

The Grand Chamber of the European Court of Human Rights held, by 16 votes to one, that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights. The case concerned three applicants’ complaint that their imprisonment for life amounted to inhuman and degrading treatment as they had no hope of release.

The Court found in particular that, for a life sentence to remain compatible with Article 3, there had to be both a possibility of release and a possibility of review. It noted that there was clear support in European and international law and practice for those principles, with the large majority of Convention Contracting States not actually imposing life sentences at all or, if they did, providing for a review of life sentences after a set period (usually 25 years’ imprisonment). The domestic law concerning the Justice Secretary’s power to release a person subject to a whole life order was unclear. In addition, prior to 2003 a review of the need for a whole life order had automatically been carried out by a Minister 25 years into the sentence. This had been eliminated in 2003 and no alternative review mechanism put in place. In these circumstances, the Court was not persuaded that the applicants’ whole life sentences were compatible with the European Convention.

In finding a violation in this case, however, the Court did not intend to give the applicants any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue in this case and were not the subject of argument before the Court. The only claim for just satisfaction that had been made was by Mr Vinter and the Court declined to award any damages.

See the early comments on the UK Human Rights Blog here.

Sindicatul “Păstorul cel Bun” v. Romania (Refusal to register a trade union for priests on account of the autonomy of religious communities is not unreasonable)

The Grand Chamber of the European Court of Human Rights held, by a majority, that there had been no violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights. The case concerned the refusal by the Romanian State of an application for registration of a trade union formed by priests of the Romanian Orthodox Church. Whereas the Court had held in its Chamber judgment that the Dolj County Court had not taken sufficient account of all the relevant arguments and had justified its refusal to register the union on purely religious grounds based on the provisions of the Church’s Statute, the Grand Chamber took the view that the County Court’s decision had simply applied the principle of the autonomy of religious communities. The court’s refusal to register the union for failure to comply with the requirement of obtaining the archbishop’s permission was a direct consequence of the right of the religious community concerned to make its own organisational arrangements and to operate in accordance with the provisions of its own Statute.

The Court held that in refusing to register the applicant union, the State had simply declined to become involved in the organisation and operation of the Romanian Orthodox Church, thereby observing its duty of denominational neutrality under Article 9 of the Convention.

And finally, Vona v Hungary (Hungarian authorities’ dissolution of association involved in anti-Roma rallies and paramilitary parading was not disproportionate)

The European Court of Human Rights held, unanimously, that there had been: no violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights. The case concerned the dissolution of an association on account of the anti-Roma rallies and demonstrations organised by its movement.

The Court recalled that, as with political parties, the State was entitled to take preventive measures to protect democracy against associations if a sufficiently imminent prejudice to the rights of others undermined the fundamental values upon which a democratic society rested and functioned. In this case, a movement created by Mr Vona’s association had led to demonstrations conveying a message of racial division, which, reminiscent of the Hungarian Nazi Movement (Arrow Cross), had had an intimidating effect on the Roma minority. Indeed, such paramilitary marches had gone beyond the mere expression of a disturbing or offensive idea, which is protected under the Convention, given the physical presence of a threatening group of organised activists. Therefore, the only way to effectively eliminate the threat posed by the movement had been to remove the organisational backup provided by the association.

New Book on Pilot Judgment Procedure

A new book on the Court's pilot judgment procedure has been published by Martinus Nijhoff Publishers. It is entitled 'The Pilot-Judgment Procedure of the European Court of Human Rights' and was written by Dominik Haider of the University of Vienna. This is the abstract of the book:

Structural human rights deficiencies in the member states of the European Convention of Human Rights have caused numerous individual applications to the European Court of Human Rights and are a considerable factor in the Court's persistent overload crisis. The Pilot-Judgment Procedure was devised to tackle these structural deficiencies and has become an important instrument of the Court.

Dominik Haider examines to which extent the Pilot-Judgment Procedure is reconcilable with the European Convention on Human Rights. After an analysis of the member states’ obligations to resolve structural deficiencies, the author asks if the European Court of Human Rights is empowered to take the procedural steps which are characteristic of the Pilot-Judgment Procedure. In particular, the Court's express orders are critically scrutinised.  

For more on pilot judgments, see also my own previous writings here and the book by Leach and others here.

New ECHR Academic Articles

The newest update of human rights "current contents" (June 2013), from a very wide range of academic sources, has been put online by our SIM documentation team. The articles specifically related to the European Convention and the European Court include:  

* F. Dorssemont, 'The right to form and to join trade unions for the protection of his interests under Article 11 ECHR: an attempt "to digest" the case law (1975-2009) of the European Court on Human Rights', Fordham International Law Journal, vol. 36, no. 2 (2013), pp. 185-235.

* B. de Wilde, 'A fundamental review of the ECHR right to examine witnesses in criminal cases', International Journal of Evidence and Proof, vol. 17, no. 2 (2013), pp. 157-182.

* J. Gerards, 'How to improve the necessity test of the European Court of Human Rights', International Journal of Constitutional Law, vol. 11, no. 2 (2013), pp. 466- 490.

 

* E. Ireland, 'Do not abort the mission: an analysis of the European Court of Human Rights case of R.R. v. Poland', North Carolina journal of international law and commercial regulation, vol. 38, no. 2, (2012/13), pp. 651-696.

 

* M. Rhinehart, 'Abortions in Ireland: reconciling a history of restrictive abortion practices with the European Court of Human Rights' ruling in A., B. & C. v. Ireland', Penn State Law Review, vol. 117, no. 3 (2012/13), pp. 959-978.

 

The American University International Law Review includes two ECHR-related articles in its volume 28 (2012/13), issues 2 and 3 respectively:

* E. Raulston, '(Un)justifiable? A comparison of electoral discrimination jurisprudence at the European Court of Human Rights and the Constitutional Court of Bosnia and Herzegovina', pp. 669-706.

* E. Lang, 'A disproportionate response: Scoppola v. Italy (no. 3) and criminal disenfranchisement in the European Court of Human Rights', pp. 835-872.

Finally, the European Human Rights Law Review in its issue no. 3 (2013) features:

* J. Costa, 'The relationship between the European Court of Human Rights and the national courts', pp. 264-274.

* R. Ó Fathaigh, 'Article 10 and the chilling effect principle', pp. 304-313.