Summer Break

This blog is taking a summer break. No posting in the weeks to come. I will be back in August and wish all of you who have it too a very good summer!

New ECHR Readings

Please find below an overview of recent and less recent (but not yet mentioned on this blog) literature on the European Convention and the European Court of Human Rights:

* N. Bratza, 'Living instrument or dead letter - the future of the European Convention on Human Rights', European Human Rights Law Review, no. 2 (2014) pp. 116-128.

* And in the same issue: C. Draghici, 'The Human Rights Act in the shadow of the European Convention: are copyist's errors allowed?', pp. 154-169. 

* E. Bribosia, I. Rorive and L. Van den Eynde, 'Same-sex marriage: building an argument before the European Court of Human Rights in light of the US experience', Berkeley Journal of International Law, vol. 32, no. 1 (2014) pp. 1-43.

* Kanstantsin Dzehtsiarou and Donal K. Coffey, 'Legitimacy and Independence of International Tribunals: An Analysis of the European Court of Human Rights', Hastings International and Comparative Law Review, vol. 37 (2014) p. 271.

* Samantha A. Miko, 'Norm Conflict, Fragmentation, and the European Court of Human Rights', Boston College Law Review, vol. 54 (2013) p. 1351.

* F. Mégret, 'The notion of ‘continuous violations’, expropriated Armenian properties, and the European Court of Human Rights', International Criminal Law Review, vol. 14, no. 2 (2014) pp. 317–331.

* S. Borelli, 'Domestic investigation and prosecution of atrocities committed during military operations: the impact of judgments of the European Court of Human Rights', Israel Law Review, 2013, vol. 46, no. 2, pp. 369-404. 

* C. Ryngaert, 'Oscillating between embracing and avoiding Bosphorus: the European Court of Human Rights on Member State responsibility for acts of international organisations and the case of the EU', European Law Review, vol. 39, no. 2 (2014) pp. 176-192.

* R. Ahdieh and H. Flemming, 'Toward a jurisprudence of free expression in Russia: the European Court of Human Rights, sub-national courts, and intersystemic adjudication', UCLA Journal of International Law and Foreign Affairs, vol. 18, no. 1 (2013) pp. 31-60.

The Court itself, together with the Fundamental Rights Agency of the European Union, launched an updated version of its 'Guide to European law on asylum,borders and immigration'. The earlier version has proven to be a huge success with over 26,00 downloads of this freely available ebook. For other languages than English, please see here.

Finally, last month, Lord Phillips of Worth Matravers delivered a public lecture at King’s College London, entitled 'European Human Rights: A Force for Good or a Threat to Democracy?' which can be read online.  

Election of Judges and Independence of the European Court of Human Rights

To increase the quality and precision of its work in the election of new judges to the Court, the Parliamentary Assembly of the Council of Europe has created a special committee. This committee will consist of twenty members and meet behind closed doors in order to interview candidates for the position of judge in the Court. It will assess whether the national selection procedures complied with the criteria of the Parliamentary Assembly itself. The committee will then make recommendations to the full Assembly which elects the judges. The Assembly's resolution on this can be found here and the press release here. 

On a related issue, the Assembly also sought to further safeguard the independence of the Court's judges, once elected, from outside interference and undue pressure. At the end of June the Assembly adopted a Recommendation on the issue based on the report of Boriss Cilevičs, on which I blogged earlier. The recommendation relates to ratification of the Sixth Protocol to the Council of Europe’s General Agreement on Privileges and Immunities, to revision of the judges’ social security arrangements and retirement pensions, and to improvements to their post-retirement status.

On a personal note: as regular readers have noted, blogging has been very scarce these past weeks. This is due to the grave illness and then passing away of my father: my thoughts and energies were and to an extent still are elsewhere.

Six New ECHR Case-Law Fact Sheets

Last week, the European Court of Human Rights has added six new factsheets to its growing collection (now around fifty) of accessible, thematic overviews of its own jurisprudence. The full list of factsheets can be found here, with some factsheets being available in other languages - including French, German Italian, Polish, Romanian, Russian and Turkish - as well through the same webpage. The newest sheets relate to the following topics:

* Elderly people 

* Persons with disabilities

* Political parties and associations

* Hunger strikes in detention

* Migrants indetention

* Domestic violence

Book on ECHR in National Case-Law

Janneke Gerards and Joseph Fleuren of Radboud University Nijmegen have just published a book on the different ways in which national courts have dealt with the ECHR and the case-law of the European Court of Human Rights in their own jurisprudence. The book entitled 'Implementation of the European Conventionon Human Rights and of the judgments of the ECtHR in national case law' deals with a selected number of countries: Belgium, France, Sweden, the United Kingdom, Germany, and the Netherlands. A comparative analysis is included. The table of contents can be found here and this is the abstract:

The European Convention on Human Rights has a large impact on national law, in particular through the case-law of the European Court of Human Rights. In most Convention states, the authorities loyally implement the Court’s interpretations in their legislation, case-law and administrative decisions. Over the past few years, however, especially in some Western European democracies where the ECHR is robustly incorporated into the national legal systems, critical voices have been raised to question the degree of the Court’s influence over national law and politics.

It turns out that many of the current debates are based on two implied assumptions and intuitions. It is felt, firstly, that the Court exercises such great influence that national authorities, in particular courts, have to act as marionettes – they must follow the Court’s movements, even if they want to act differently. The second assumption is that this marionette behaviour and its constitutionally questionable consequences are facilitated and accommodated by the legal and constitutional mechanisms determining the national courts’ competences.

This book questions the correctness of these assumptions and aims for further study of them. This is done by disentangling and illuminating the different elements underlying the interrelationship between the Court and the national courts. The objective is to distinguish between the requirements set by the Court; the constitutional powers and competences of national courts to interpret and apply international law, in particular the Convention; the way in which these courts actually use these competences to deal with the Court’s interpretative approaches; and the type of criticism that is levelled at the Court’s case-law. These elements are studied from the perspective of the Court as well as from a national perspective, in particular for Belgium, France, Germany, the Netherlands, Sweden and the United Kingdom.

Analysing these elements separately enables a fruitful assessment of their interrelationship and provides a sound basis for a constructive debate on the implementation of the Convention in national law, which is based on solid constitutional foundations rather than assumptions and intuitions. The current book is therefore of great interest to those who are interested in debates on the interrelationship between the Court and the states – scholars, as well as judges, policy makers and politicians – but also to those who take a more general interest in constitutional implementation mechanisms, judicial powers and judicial argumentation. 

Report on Reinforcing the Court's Independence

Rapporteur Boriss Cilevičs, a member of the Council of Europe's Parliamentary Assembly from Latvia, has written a report aimed to support and further strengthen the independence of the European Court of Human Rights. The report reads, in its first part, as a concise introduction to the theme of how the Court is organised and how judges are elected. It then goes on to touch upon a number of specific matters and upcoming reforms related to protecting the factual independence of judges. This ranges from criteria of age and retirement, through privileges and immunities to social security and pensions. The report deals, for example, with the post-Court life of judges, noting the following:

 

"... a number of former judges of the Court have experienced difficulties in finding employment.  In some extreme cases, these difficulties may, purportedly, be caused by an ’insufficiently patriotic’ position of judges taken on prominent cases against their own states. To put it plainly, an ’overly principled stand’ by a judge may entail an element of ‘revenge’ by national authorities upon the judge’s retirement. The risk of similar treatment for a serving judge may compromise judicial independence."

 

The report, finally, also addresses concerns about the independence of the Court's support staff, the Registry, on the specific issue of staff seconded from state parties and on staff on temporary contracts. The report ends with a positive note - the Court as the crown jewel of the Council of Europe - but simultaneously remarks that on the specfic points dealt with there is still room for improvement.

Book on Legitimate Expectations and the ECHR

Maya Sigron has written a monograph on the concept of legitimate expectations under the right to property. The book, entitled "Legitimate Expectations Under Article 1 of Protocol No. 1 to the European Convention on Human Rights" has been published with Intersentia. This is the abstract:

This book provides a thorough evaluation of the complex relationship between legitimate expectations and the protection of property guaranteed by Article 1 of Protocol No. 1 to the European Convention on Human Rights.

To set the context, the book first gives a brief but comprehensive analysis of property rights from Ancient Greek times until now. Subsequently, it compares the protection of legitimate expectations with its underlying principles in other legal orders.

The book’s core addresses three main research questions: What are the conditions for the creation and protection of legitimate expectations in the context of Article 1 of Protocol No. 1? What role do confidence, detriment and fair balance play in that context? What purpose do legitimate expectations fulfil in the context of Article 1 of Protocol No. 1?

To answer these questions, the author conducts an extensive analysis of the European Court of Human Rights’ case-law related to legitimate expectations under Article 1 of Protocol No. 1. On the occasion of this analysis, she collects and lists the main misunderstandings with respect to legitimate expectations in cases brought before the European Court of Human Rights under Article 1 of Protocol No. 1.

The conclusion assesses the major results and paves the way for future debate about the doctrine of legitimate expectations under Article 1 of Protocol No. 1.

Court Reform Compilation Document

The Council of Europe has compiled a large document of over 500 pages which reflects the ongoing reform efforts regarding the European Court of Human Rights of the last few years. It is entitled 'The European Convention on Human Rights : Interlaken,İzmir, Brighton and beyond. A compilation of instruments and texts relating tothe ongoing reform of the ECHR' and is freely accessible online. It includes the key speeches and concluding documents of the three mentioned intergovernmental conferences, reports of the Steering Committee on Human Rights (CDDH), the texts of Protocols 15 and 16 and their explanatory reports. A very useful all-in-one compilation of the current state of affairs on reform. The newest updates on the reform work can be found, as noted earlier, on this dedicated website. 

Summer School on European Human Rights

The Center for European Law of the University of Bologna, in cooperation with King’s College London and the University of Strasbourg are organising their XIVth joint edition of the  Summer School on the protection of fundamental rights in Europe. The Summer School, to be held in French and English, will be held from the 30th of June to the 4th of July in the magnificent venue of the Castle of Bertinoro. In particular, emphasis will be placed on the European Convention of Human Rights - the rights it guarantees, the system of protection it creates – and the European Charter of Fundamental Rights. In this context the relationship between the European Court of Justice and the European Court of Human Rights will be discussed. Full details on content and registration can be found here.

ECHR Guide for Lawyers

The Council of Bars and Law Societies of Europe (CCBE) has published a special guide entitled 'The European Court of Human Rights - Questions and Answers for Lawyers' online. The small booklet can be seen as a very practical, albeit also quite basic (it includes only "key information", as the editors state) introduction to the aspects of the Strasbourg system relevant to practicing lawyers. Questions answered range from "How should ECHR case law be invoked in the national proceedings?" to "Can applicants obtain legal aid in respect of proceedings before the Court?" Many answers include links to further relevant information. This is the abstract of the guide: 

"This guide is directed at lawyers intending to bring a case before the ECHR. The guide, which is a list of questions and answers, contains information and practical advice for proceedings before national courts prior to application to the ECHR, before the Court itself, and during the enforcement of the Court’s judgments.

A number of questions are covered in the handbook, including: at what stage of proceedings before national courts should human rights violations be pleaded under the European Convention of Human Rights; how to submit an application to the Court; the technical aspects of proceedings; and the role of a lawyer once a judgment has been rendered. Also included are reference to tools and resources available for parties and their lawyers."