HUDOC in Russian

The Court's HUDOC case-law search engine is available since this month in the language of the Convention's most populous state party: Russian. Part of the ever-expanding availability of ECHR information in other languages than English and French on the Court's website, this is a new major step forwards. Earlier, translations of important judgments into Russian (currently over a thousand already) were already included in HUDOC, but now the search engine also has a Russian version of its portal. Factsheets in Russian on the jurisprudence of the Court and other relevant information are brought together on a special web page. In addition, the Russain version of the Court's 50 year anniversary book, The Conscience of Europe, can be retrieved here. See the press release on the launch of the Russian version of HUDOC here (it can also be accessed by clicking on "Other languages" at the upper right in the HUDOC interface). Let's hope that this increased accessibility of European human rights material may trickle up to levels where its insights are most needed in the period of current tension.

My New Article in ICLQ on ECHR, Violence and Free Speech

I am very happy to announce that my article entitled 'Dangerous Expressions: The ECHR, Violence and Free Speech' has just been published in the International and Comparative Law Quarterly (vol. 63, April 2014, pp. 491-503). The article is part of a larger research project which I have just finalised on the linkages between freedom of expression, the media, and violent conflict escalation. It investigates when speech becomes dangerous and is related to violent conflict escalation. The ICLQ article looks at the ECHR-related aspects of that issue. This is the abstract:

How should one balance the freedom of expression and the prevention of violence? This article delves into the grey zone between hate speech and incitement to violence by assessing the jurisprudence of the European Court of Human Rights in cases of allegedly dangerous speech. Rather than labelling this case law as simplistic, as some critics even within the Court have done, it is shown that the jurisprudence reveals cleavages within the Court on whether to adopt a more or less consequentialist approach on the links between speech and violence. Freedom of expression cases should preferably be assessed on the merits under Article 10 ECHR since this allows for a balancing of the various interests involved. The application of the abuse of rights clause of Article 17 ECHR is for that very reason undesirable, in addition to its inconsistent use by the Court.

Enjoy reading!

Failures to Comply with Interim Measures

There are still serious and worrying failures of state parties to the Convention to comply with interim measures indicated by the Court under Rule 39 of the Rules of Court. This was the message coming from the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly (PACE) of the Council of Europe last week. It adopted a draft resolution and draft recommendation on the issue, to be sent to the plenary of PACE. Here is a summary of the Committee's position:

"The committee strongly condemns instances of outright violations by several States Parties to the Convention of the Court’s interim measures aimed at protecting applicants from extradition or deportation to countries where they would be at risk of, in particular, torture. It is worried about the recent phenomenon, observed in the Russian Federation, of the temporary disappearance of applicants protected by interim measures and their subsequent reappearance in the country which had requested extradition. This can be likened to the practice of “extraordinary renditions” repeatedly condemned by the Parliamentary Assembly.

The committee welcomes the increasing use, by the Court, of factual presumptions and the reversal of the burden of proof in dealing with refusals of States Parties to co-operate with it, which consist in their failure to provide full, frank and fair disclosure in response to requests by the Court for further information or evidence."

For a full overview of cases in which Rule 39 was breached or allegedly breached and the response of the Court, see here. And see here for a verbatim of the debate itself. The report of the rapporteur, Mr Kimmo Sasi, includes a very precise overview of recent instances of non-compiance and is to be found here (see under explanatory memorandum).

New ECHR Readings

The newest issue of the European Journal of International Law (vol. 25, issue 1, 2014) includes a symposium on human rights implementation in Europe:

 

* Dia Anagnostou and  Alina Mungiu-Pippidi, ‘Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter’

* Erik Voeten, ‘Domestic Implementation of European Court of Human Rights Judgments: Legal Infrastructure and Government Effectiveness Matter: A Reply to Dia Anagnostou and Alina Mungiu-Pippidi’

A number of other journals also include ECHR-related articles:
 

* A. Cogbill, ‘European Court of Human Rights' dance with death’, ConnecticutJournal of International Law, vol. 29, no. 1 (2013) pp. 151-180.

* E. Silinyte, ‘The application of the definition of torture: nowadays and perspectives in the practice of European Court of Human Rights’, Contemporaryreadings in law and social justice, vol. 5, no. 2 (2013) pp. 244-254.

* A. Romero, ‘The European Court of Human Rights and religion: between Christian neutrality and the fear of Islam’, New Zealand journal of public and international law, vol. 11, no. 1 (2013) pp. 75-102.

Finally, Amnesty International has published the second edition of its Fair Trial Manual, which builds, among others, on Strasbourg case-law.

René Cassin Competition 2014

Later this week, on 10 and 11 April, the 29th edition of the French-language moot court competition René Cassin will be held at the premises of the Court. It consists of mock legal proceedings in an imaginary case related to the European Convention. Sixteen university teams from French-speaking countries, but also from Slovenia and Turkey, will gather in Strasbourg for the competition. As the fictitious case this year involves sport and laws voted by referendum, it is most suitable that this year's mock court wil be chaired by David Douillet who is both a former French Minister for Sport and an Olympic champion (in judo, so the participants might want to avoid contempt of Court!). The official website of the competition can be found here and the webpage on the Court's own website related to the competition is here. As in previous years, the motto of the competition remains "il s'agit de s'amuser avec le droit, pour le droit et autour du droit." [It is about enjoying oneself with the law, for the law and around the law].

 

 

 

Conference on UK and European Human Rights

The University of Leicester is organising a two-day conference on the issue of 'The UK and European Human Rights - A Strained Relationship?' on 23 and 24 May. The conference is convened by  Dr Loveday Hodson, Professor Liz Wicks and Professor Katja Ziegler. The full programme of the event can be found here. This is the idea of the conference:

"The conference will encompass both the UK’s relationship with the European Court of Human Rights in Strasbourg and the additional layer of human rights protection through the European Union. It will seek to contribute to the debates in the UK, and elsewhere, about the relationship between the ECHR and national courts.

 

The conference will bring together judges, barristers and solicitors, politicians, representatives of NGOs, the media and academics in the field. A number of high profile speakers are confirmed with judges from the Supreme Court and European Court of Human Rights, as well as leading authorities from academia."

 

Confirmed speakers include:

 

Judge Paul Mahoney, European Court of Human Rights

Judge Luis López Guerra, European Court of Human Rights

The Right Hon Lord Kerr of Tonaghmore, Justice of the UK Supreme Court

Dr Ed Bates, University of Southampton

Professor emeritus David Bonner, University of Leicester

Professor Bill Bowring, Birkbeck, University of London

Professor emeritus AW Bradley, University of Edinburgh

Professor Johan Callewaert, European Court of Human Rights

Olga Chernishova, European Court of Human Rights

Richard Clayton, QC, 4-5 Gray’s Inn Square

Professor Brice Dickson, Queen’s University, Belfast

Ms Alice Donald, EHRAC, Middlesex University

Professor Sionaidh Douglas-Scott, University of Oxford

Professor David Feldman, University of Cambridge

Dr Lieve Gies, University of Leicester

Professor emerita Constance Grewe, Strasbourg

Dr Barbara Havelkova, University of Oxford

Dr Tom Hickman, Blackstone Chambers

Professor Philip Leach, EHRAC, Middlesex University

Jean-Paul Marthoz, Human Rights and Media Project, Brussels

Mr Justice McCloskey, President of the Upper Tribunal Immigration & Asylum

Professor David Mead, University of East Anglia

Professor Andreas Th. Müller, Innsbruck

Dr Noreen O’Meara, University of Surrey

Dr Oreste Pollicino, Bocconi University, Milan

Professor Robert Uerpmann-Wittzack, University of Regensburg

Professor emeritus Robin White, University of Leicester

Dr Reuven Ziegler, University of Reading

 

Registration can be done here.

Guest Post on Biao v Denmark

I am very happy to introduce a guest post by my SIM colleague dr Alexandra Timmer. She has written a commentary on the recent judgment in Biao v. Denmark which concerns family reunification and discrimination issues. This is her guest post:

 

Divided Opinions in Biao v. Denmark: Of Race, Rights and Family Reunion

Alexandra Timmer

Last week the Second Section of the European Court of Human Rights delivered a 4:3 judgment in the case of Biao v. Denmark. This case confronted the Court with difficult questions. The first – indirect – question is: what is race? And the second is: what is indirect discrimination? It turns out that the Court could not agree on either of these issues. Biao concerned a refusal to grant the Ghanaian wife of a Danish national family reunion in Denmark. The family was not allowed to reunite in Denmark, because they did not meet the criteria of what is known as the “attachment requirement”. Amongst other things, Mr and Ms Biao complained in Strasbourg that the rules regarding family reunification discriminated against them because it had a disproportionate effect on people who have become Danish nationals later in life. By the slimmest of majorities, the Court found no violation of the prohibition on discrimination in conjunction with the right to family life (Articles 14 and 8). Unanimously, the Court also found no violation of Article 8 standing alone.

 

This post will focus on the Court’s reasoning regarding the claim of discrimination. The majority opinion hardly contains real discrimination analysis, whereas the dissenting opinion of Judges Sajó, Vučinič and Kūris provides a more thorough reasoning on that point. Both opinions provide rich material for discussion.

 

Facts

The applicants are a husband and wife. Mr Biao is a naturalized Danish citizen, originally from Togo. Ms Biao is a Ghanaian citizen. They live in Sweden with their 9-years old son. Their son has Danish nationality due to his father’s nationality.

 

Mr. Biao came to Denmark in 1993, after having spent 15 years in Ghana. Having lived in Denmark for 9 years, he was granted Danish nationality in 2002. In 2003, a week after their marriage, Ms Biao applied for a Danish residence permit, which was refused by the Aliens Authority. The authorities found in particular that the applicants did not comply with the requirement that a couple applying for family reunion must not have stronger ties with another country, Ghana in the applicants’ case, than with Denmark (known as the “attachment requirement”).

 

The attachment requirement is the general rule for allowing a Danish citizen and his or her foreign spouse to be reunited in Denmark. The exception to this requirement is the “28-year rule”, under which reunification is allowed if the Danish spouse has been a Danish citizen for at least twenty-eight years. The 28-year old rule also applies to people who are not Danish nationals, but who were born and raised in Denmark, or came to Denmark as small children and were raised there, and who have stayed lawfully in the country for 28 years.

 

Mr and Ms Biao appealed the refusal of family reunification. They submitted, amongst other things, that the 28-year rule exception resulted in a difference in treatment between two groups of Danish nationals, namely those born Danish nationals and those who acquired Danish nationality later in life. Mr Biao acquired Danish citizenship when he was 31. According to the 28-years rule, he will gain the right to family reunification only when he is 59. The Danish Supreme Court was deeply divided over this issue. So was the Strasbourg Court, as I will now proceed to discuss.

 

Judgment

First of all, the Court notes that the case falls within the ambit of Article 8, which triggers the applicability of Article 14.

 

What is the ground for the difference in treatment?

The first question that the Court then faces, is what the differential treatment ground in this case is (see para. 79 and further). Article 14 lists a number of prohibited discrimination grounds, amongst which are race, birth, national or social origin and “other status”. The wording of the relevant section of Danish law is neutral: the attachment requirement applies to all Danish nationals. The Court first investigates whether this is a case of indirect discrimination, as the applicants had argued:

 

“the Court can agree with the minority of the Supreme Court that the 28-year rule had the consequence of creating an indirect difference in treatment between Danish nationals of Danish ethnic origin and Danish nationals of other ethnic origin, because de facto the vast majority of persons born Danish citizens would usually be of Danish ethnic origin, whereas persons who acquired Danish citizenship at a later point in their life would generally be of foreign ethnic origin” (para. 90)

 

Nevertheless, in the same paragraph the Court dismisses the complaint of indirect discrimination for reasons that are unclear to me, mainly by referring to the old case of Abdulaziz, Cabalesand Balkandali v. the United Kingdom (1985). Without saying so explicitly, the majority comes to the conclusion that this is a case of direct difference in treatment; the discrimination ground being “other status”, namely length of citizenship.

 

Objective and reasonable justification?

Although the majority does not make this explicit, the consequence of the finding that the difference in treatment at issue concerned “other status”, rather than race, national or ethnic origin, is that the Court does not have to apply the very weighty reasons test (see, mutatis mutandis, Gaygusuz v. Austria). The Court’s scrutiny of the proportionality of the application of the 28-year rule to the applicants’ case is therefore not strict.

 

On the side of the Government, the Court emphasizes that the Danish Supreme Court had thoroughly analyzed the case (para. 93). Furthermore, the Court holds that the European Convention on Nationality is not of relevance to the present case (see para. 95). Article 5(2) of that Convention enshrines the principle of non-discrimination between nationals, whether they are nationals by birth or have acquired its nationality subsequently. Moreover, the majority refers to the case of Abdulaziz, Cabales and Balkandali, in which the Court held that “there are in general persuasive social reasons for giving special treatment to those who have strong ties with a country, whether stemming from birth within it or from being a national or a long‑term resident” (see para. 94).

On the side of the applicant, the Court does criticize the 28-year old rule:

 

It is not for the Court to lay down a specific limit for the time that may be required. However, to conclude that in order to be presumed to have strong ties with a country, one has to have direct ties with that country for at least 28 years appears excessively strict. (para. 99)

 

And:

the 28-year rule affected persons who only acquired Danish nationality later in life with a far greater impact than persons born with Danish nationality. In fact, this group of Danes’ chances of reuniting with a foreign spouse in Denmark, and creating a family there, were significantly poorer and, it appears, almost illusory where the residing partner acquired Danish citizenship as an adult (par. 101)

 

Despite these problems with the 28-year old rule, the majority finds that “where national legislation is in issue, it is not the Court’s task to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it” (paragraph 103). What is puzzling here is that the majority cites Taxquet v. Belgium as support, a case concerning the right to a fair trial; not a discrimination case. It is not uncommon in discrimination cases that the Court criticizes national legislation (take for example KonstantinMarkin v. Russia, where the Court took issue with the Russian law that made parental leave available for servicewomen but not for servicemen). Indeed, that is inherent in the discrimination analysis when the discriminatory treatment flows from formal legal rules. The Taxquet line of reasoning enables the majority to make a purely individual proportionality assessment, focusing only on Mr and Ms Biao. The majority concludes that at the relevant time their aggregate ties to Denmark were clearly not stronger than their ties to another country.

 

Dissenting opinion

The three dissenting judges argue that Article 14 juncto Article 8 is violated. They have written a very thoroughly reasoned separate opinion, which actually merits its own blog post. I will just highlight two striking aspects of their reasoning.

 

First of all, they disagree with the majority that the applicants enjoy “other status” for the purposes of Article 14 (dissent para. 12). The dissenters attempt to give some guidance on the tricky question of “what is race”. In their view, this is not a case of racial discrimination but of discrimination on the ground of national origin. “National origin is an “ethnic criterion” in the non-racist sense”, they claim (dissent para. 13 and 15).

 

Secondly, the dissenters insist – rightly in my view – that the Court’s discrimination analysis ought to consist of two levels: the individual level and the general context. When it comes to general context, it is interesting that the dissenters insist on the importance of looking at the role of stereotypes in discrimination cases:

 

the paramount concern of a human rights court should be whether such criteria have the disparate adverse impact of a stereotype on a minority group, no less important than the actual individual impact, which in every case is absolutely necessary for victim status to obtain. The difference in the treatment of a group raises fundamental human rights concerns, especially if it reflects or reinforces existing patterns of social stereotyping related to one or other “natural feature”. It is impossible to think of Article 14 of the Convention as permitting second-class citizenship, especially within the ambit of Convention rights (such as those consolidated in Article 8). For this reason, the Court’s indirect discrimination doctrine is concerned with the group effects of a general measure and not only with individual impacts: discrimination may occur where “a general policy or measure ... has disproportionately prejudicial effects on a particular group” (see D. H. and Others, § 175) (dissent, para. 8).

 

The dissenters claim that: “the impugned differentiation reflects and reinforces, albeit indirectly, a negative stereotype.” (dissent para. 16). Referring to the 2012 Grand Chamber judgment in Konstantin Markin v. Russia, the dissenters remind everyone that “the Court previously held that general assumptions or prevailing social attitudes in a particular country provided insufficient justification for a difference in treatment on the ground of sex”. They “find that similar concerns should apply to immigrant minorities.”(dissent par. 16). I agree. The stereotype at issue here is that immigrants who marry persons from their country of origin are not well integrated. Throughout the judgment reference is made to the mirror opposite of the poorly integrated immigrant, namely the Danish expatriate who “speak[s] Danish at home, take[s] holidays in Denmark, read[s] Danish newspapers regularly” (see e.g. par. 24). This is the person whom the family reunification rules seek to protect.

 

Concluding thoughts

There is a lot to say about this judgment, and I cannot say it all here.  Several issues will require further discussion, for example:

-          The casual and highly questionable way the majority of the Court dismisses the European Convention on Nationality as not being of relevance to the present case (see par. 95). This is a Council of Europe Convention, which Denmark has ratified!

-          The applicants have a son who is a Danish citizen, but who cannot live in Denmark with both his parents. Where is the perspective of the child’s best interest in the majority opinion? The dissenters rightly flag this absence in paragraph 5 of their separate opinion.

 

Paragraphs 79-91, where the majority discusses what the applicable discrimination ground is in this case are very confusing. The reasons for dismissing the indirect discrimination claim appear insufficient. In the first place we are told that “the only intention behind the introduction of the 28-year rule was to provide for a positive treatment” of certain groups of citizens who are thought to have such strong ties with Denmark that it is unproblematic to grant them the right of family reunion (par 89). But – as the dissenters rightly point this out, referring to D.H. and Others - the intent of the legislature is irrelevant when it comes to assessing the merit of indirect discrimination claims!

 

Secondly, the majority refers to Abdulaziz, Cabales and Balkandali apparently in order to establish what is racial discrimination and what is not. But that is exactly (one of the) point(s) wherein Abdulaziz, Cabales and Balkandali is outdated: the first time the Court actually held a State accountable for racial discrimination was only in the Chamber judgment of Nachova in 2004. Abdulaziz, Cabales and Balkandali provides no guidance any more on what should count as race discrimination. Remember that in that case “the legislative history showed that the intention was to ‘lower the number of coloured immigrants’” (Abdulaziz par. 84), and still the Court had maintained that this was no case of race discrimination!

 

Ultimately, Biao raises more questions than it answers regarding indirect racial discrimination and related forms of discrimination, namely on the grounds of ethnic and national origin. The dissenters make a more thorough attempt at providing guidance on this difficult topic than the majority. The majority judgment attaches excessive weight to Abdulaziz, Cabales and Balkandali. It is time for a more authoritative judgment of the Court! 

 

New ECHR Publications

Please find below a new update of articles and books related to the European Convention and the European Court of Human Rights. Enjoy reading!

 

* The newest issue of the Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht and Völkerrecht), vol. 74, no. 1 (2014) includes: Jannika Jahn, ‘Ruling (in)directly through individual measures?: Effect and legitimacy of the ECtHR's New Remedial Power’.

 

The Zeitschrift für Europarechtliche Studien, vol. 17 (2014) includes two articles on the ECHR:

 

* David Milner, ‘Protocols no. 15 and 16 to the European Convention on Human Rights in the context of the perennial process of reform: a long and winding road’, pp. 19-51:

Two new protocols to the European Convention on Human Rights were opened for signature in 2013. These were the direct results of drafting work initiated following the 2012 Brighton High-level Conference on the reform of the European Court of Human Rights. The discussions that led to them, however, had begun much earlier. Most obviously, the roots lay in the Report of the Group of Wise Persons, commissioned at the 2005 Warsaw Summit in the aftermath of the adoption of Protocol no. 14. In fact, the debates underlying both protocols form part of a continuum stretching back before Protocol no. 11, which created the current basic structure of the control mechanism. Long-standing tensions manifested themselves during negotiation and drafting and remained incompletely reconciled at the conclusion of the process. This article traces the background and history of Protocols no. 15 and 16, before continuing with a detailed description of the drafting process and the content of the final provisions, and then concluding with consideration of their overall significance in the on-going process of “Court reform”.
 

* Lara Wolf, 'Die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zu Flüchtlingen am Beispiel der Fälle “Hirsi Jamaa u.a. gegen Italien” sowie “M.S.S. gegen Belgien und Griechenland”', pp. 53-78:

Wie geht Europa mit Flüchtlingen um, die den Weg in die Mitgliedstaaten suchen? Diese Frage stellt sich seit Jahren mit unveränderter Brisanz, da die Antwort auf sie zumeist in einem Spannungsfeld liegt: Zwischen den Werten, zu denen sich Europa auch unter der EMRK verpflichtet, und den politischen Realitäten im Umgang mit jenen Flüchtlingen. Eine Antwort gibt der EGMR in seinen Entscheidungen M.S.S. gegen Belgien und Griechenland und Hirsi Jamaa u.a. gegen Italien von 2011 und 2012. Nach einer Darstellung der Urteile wird anhand der vier wichtigsten gemeinsamen Grundsätze dargelegt, dass sich eine gemeinsame Rechtsprechungslinie in beiden Urteilen klar erkennen lässt: So stärken beide das Non-Refoulement-Prinzip, unterstellen das geltende Asylsystem Europas einem menschenrechtlichen Vorbehalt und haben Implikationen für das Verfahrensrecht vor dem EGMR. Im Ergebnis sind M.S.S. und Hirsi beispielhaft für die Rechtsprechung des EGMR zum Flüchtlingsrecht sowie dafür, wie internationale Menschenrechte einen weiteren Schutz als internationales Flüchtlingsrecht bieten. Vor diesem Hintergrund wird auch ein kritischer Blick auf die jüngsten politischen Maßnahmen im Rahmen des Europäischen Asylsystems geworfen

* A group of four editors - Kanstantsin Dzehtsiarou, Theodore Konstadinides, Tobias Lock, Noreen O'Meara - have published 'Human Rights Law in Europe. The Influence,Overlaps and Contradictions of the EU and the ECHR' with Routledge. This is the abstract:

This book provides analysis and critique of the dual protection of human rights in Europe by assessing the developing legal relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The book offers a comprehensive consideration of the institutional framework, adjudicatory approaches, and the protection of material rights within the law of the European Union and the European Convention on Human Rights (ECHR). It particularly explores the involvement and participation of stakeholders in the functioning of the EU and the ECtHR, and asks how well the new legal model of ‘the EU under the ECtHR’ compares to current EU law, the ECHR and general international law.

 

Including contributions from leading scholars in the field, each chapter sets out specific case-studies that illustrate the tensions and synergies emergent from the EU-ECHR relationship. In so doing, the book highlights the overlap and dialectic between Europe’s two primary international courts. The book will be of great interest to students and researchers of European Law and Human Rights.

 

Finally, the newest issue of the Inter-American and European Human Rights Journal, vol. 6, no. 1 (20014) includes:   

 

* E. Webster,  ‘Medical-Related Expulsion and Interpretation of Article 3 of the European Convention on Human Rights’

* N. Van Belle, ‘The Judicial Protection of Human Rights in Europe after the Accession of the European Union to the European Convention on Human Rights’

Liber Amicorum Leo Zwaak - ECHR Contributions

The Liber Amicorum for my dear colleague Leo Zwaak has just been published. Many will know Leo as one of the great experts on the ECHR who has taught generations of students and practitioners about the European Convention system. It may therefore not come as a surprise that the book, entitled 'The Realisation of Human Rights: When Theory Meets Practice. Studies in Honour of Leo Zwaak', includes contributions by a wide variety of scholars, from many different fields of law and from various generations of scholarship. I was privileged to be included in this volume with a contribution on the lack of a significant disadvantage criterion in the ECHR (See also the link in the sidebar of this blog to that article). Here is an overview of the ECHR-related articles in the book (full table of contents here):

 

* Michael O’Boyle, ‘The Role of Dialogue in the Relationship Between the European Court of Human Rights and National Courts’

* Antoine Buyse, ‘Significantly Insignificant? The Life in the Margins of the Admissibility Criterion in Article 35(3)(b) European Convention on Human Rights’

* Fried van Hoof, ‘The Stubbornness of the European Court of Human Rights’ Margin of Appreciation Doctrine’

* Egbert Myjer, ‘Are Judges of the European Court of Human Rights so Qualified that they are in No Need of Initial and In-Service Training? A ‘Straatsburgse Myj/mering’ (Myjer’s Musings from Strasbourg) for Leo Zwaak’

Ukraine - Russia Inter-State Application Guest Post

It is my pleasure to present a guest post by Kanstantsin Dzehtsiarou of the University of Surrey on the inter-state application lodged by Ukraine against Russia earlier this month and, more specifically, on the interim measures the Court indicated as a reaction to the rapidly unfolding events. The President of the Court called "upon both Contracting Parties concerned to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention." For more, see also the comments of professor Philip Leach on EJIL Talk! Here are Dr Dzehtsiariou's guest comments:

The Effectiveness of the European Court of Human Rights in Cases of War.

 Dr Kanstantsin Dzehtsiarou 

On 13 March 2014, the Ukrainian government brought an inter-state application before the European Court of Human Rights (ECtHR) against the Russian Federation concerning military threats allegedly posed by Russian troops in the Crimea, which is an autonomous region within the Ukraine. The alleged Russian presence in the Crimea could result in military confrontation in the light of the partial mobilisation of the armed forces of the Ukraine.

In lodging its application, the Ukraine has also applied to the Court for interim measures, which have been granted by the Court due to the fact that the current situation in Ukraine gives rise to a continuing risk of serious violations of the Convention. Pursuant to these interim measures, both parties are ordered to refrain from activities that could threaten the lives and health of the Ukrainian civilian population, which includes military actions. Although the lodging of this complaint and the request for interim measures are logical steps for the new Ukrainian government to take in the circumstances, it is not clear what the effect of these steps will be. Arguably, the ECtHR could not reject the request to grant interim measures, as similar requests had been granted in the past (see, Georgia v Russia II. More on that case here). The key question, however, is whether the ECHR is institutionally capable of preventing a war and ensuring the effectiveness of such interim measures.

To answer this question comprehensively, one would need to examine the rich jurisprudence of the Court dealing with military occupations. This modest blog post does not intend to do that. It will only provide an overview of what the Court can and cannot do. Moreover, I will argue that if the Court becomes too ambitious, it might damage its reputation and legitimacy.

In the late 1940’s, immediately after the Second World War, the European Convention on Human Rights was drafted with three main purposes in mind: 1) preventing gross violations of human rights; 2) stopping Contracting Parties from sliding to totalitarism; and 3) preventing new wars. It is doubtful, however, that the Court is capable of fulfilling these purposes. Having said that, the Court is able to do something else – namely, offer post factum redress to at least some individual victims of military occupations and confirm certain principles of how to deal with such violations. In Loizidou v Turkey, for example, the Court found a violation of the applicant's right to access her property on the territory of Northern Cyprus occupied by Turkey. In Ilaşcu and others v Russia and Moldova, the ECtHR has found that there was a breach of the Convention in Transnistria occupied by the Russian troops. The Court has thus been able to provide relief to individuals whose human rights have been infringed and has held occupying States to account in ensuring compliance with human rights law on the occupied territories.

Unfortunately, the Court is unable to prevent war. Moreover, major attempts to do so can lead to disappointment and despair on the part of the stakeholders. Interim measures is one of very few instruments available to the Court that are capable of affecting on ongoing or developing situation. However, it appears that granting interim measures in a pre-war situation in an inter-state complaint might have very little impact. It is unlikely that a government will change its mind to occupy a particular territory because the ECtHR has ordered it not to do so.

This does not mean that interim measures of the ECtHR in individual cases are always honoured. In cases involving the UK, France, Slovakia and Russia, among others, the Court has ordered Contracting Parties not to extradite an applicant who is subsequently extradited nevertheless. These situations, however, led to powerful criticism by the Court and the near-automatic finding of a violation in such cases. It seems that the Court does realise that violations of interim measures undermine its authority, credibility and reputation. This is the reason why the Court seeks to use interim measures only in cases where they can realistically be complied with. However, this is not the case in the pre-war scenarios. In 2008, Georgia also brought a complaint against Russia to the ECtHR and requested interim measures in relation to military action in South Ossetia and Abkhazia (see Georgia v Russia II). The Georgian authorities subsequently argued that these interim measures had not been complied with. It seems that the Russian authorities have a track record of failure to comply with interim measures before and during military actions. Bearing that in mind, one might wonder why the Court continues to grant interim measures and thus endanger its credibility. If the Court wishes to send a clear message to the Russian government, it will be one of hundreds of messages of that kind and I am sure that the Russian authorities know very well how the ECtHR would react to its actions. Since the measures are directed to both parties, it might seem that the measures are mostly directed to stop Ukraine from trying to protect its sovereign territory through military means. While the Court’s request talks about civilian population it seems that such interim measures add to the scope of international humanitarian law and narrows the scope of opportunities for Ukraine to protect its territory by military means.

Moreover, interim measures are not mentioned in the Convention and they were declared binding by the ECtHR in its case law (see, Mamatkulov and Askarov v Turkey). Therefore, the State's compliance is crucial for considering this particular aspect of the court-made law as legitimate. Interim measures do not enjoy the same level of legitimacy as the Convention which was ratified by the Contracting Parties. It is also doubtful whether interim measures are easily transferable to the cases of inter-state applications. Interim measures were developed in individual cases and were designed to prevent immediate and irreparable damage to the applicants; for example, the continuation of torture, or preventing extradition to the state where he or she could be subjected to torture. In inter-state complaints, the measures are formulated in general terms and compliance becomes a disputed issue. Moreover, the respondent state might intentionally or accidentally misunderstand what is expected from it, rendering the effectiveness of such interim measures almost negligible and this in turn damaging the reputation of the Court.

The lack of effectiveness in these circumstances is not a unique attribute of the Strasbourg Court. It seems that no court can effectively prevent a war. There might be historical examples to the contrary but they are clearly exceptions. The ECtHR can only be effective if the Contracting Parties value law. The Court does not have an apparatus of implementing its decisions of granting of interim measures. The Contracting Parties should effectively volunteer to fulfil obligations imposed by the Court. Any aggressive war is a gross violation of international law which shows that this state has no respect for law and it should not come as a surprise that the same state would not comply and honour decisions of the Court dealing with such situations.

It is unrealistic to burden the Court with such an unattainable task as the prevention of war. War and peace are issues ordinarily decided by the executives and only later reconceptualised and checked by courts. The ineffectiveness of the Court's prior involvement can damage its credibility and negatively affect its activities through which it has a chance to succeed, namely, post factum redress of violations flowing from the military occupation.