Interim Measure for Russia's Last Free Media: Novaya Gazeta

In a very exceptional move, yesterday - the very day the Russian Federation announced it would take steps to cease participation in the Council of Europe (see our post here) - the European Court of Human Rights announced it had earlier in the week issued the following to the Russian Federation as an urgent interim measure: 

"to abstain until further notice from actions and decisions aimed at full blocking and termination of the activities of Novaya Gazeta, and from other actions that in the current circumstances could deprive Novaya Gazeta of the enjoyment of its rights guaranteed by Article 10 of the Convention (freedom of expression)."

The measure was indicated in the context of the already pending case of ANO RID Novaya Gazeta and Others v. Russia (application no. 11884/22). The case includes four applicants: newspaper Novaya Gazeta, widely regarded as Russia's last truly independent large newspaper and television company OOO Telekanal Dozhd, also seen as one of the other remaining independent news outlets, and two individuals Dmitriy Andreyevich Muratov and Natalya Vladimirovna Sindeyeva. Muratov is the editor of Novaya Gazeta and received last year's Nobel Peace Prize. Sindeyeva is the owner of Telekanal Dozhd.

In terms of speed, one may note that the request for an interim measure was made by Muratov on 3 March and on 8 March, so five days later, the Chamber of the Court to which the case had been allocated met and decided to indicate this interim measure. Thus, one may note that this took a bit longer than usual with interim measures, which are in individual cases of impending expulsion or extradition often issued with. 48 hours. This may have to do with the novelty of the context. As far as I am aware, this is the first time they are applied to press freedom and a media outlet. As is known, the Court can indicate interim measures under Rule 39 of the Rules of Court. These are binding upon states. 

It should be noted that Muratov asked the Court for interim measures with a wider range than it has in the end indicated: he requested that the measures would counter all interferences with lawful activities of Russian mass media and specifically with the coverage of the war in Ukraine. It followed a week in which dozens of media outlets had been closed or their websites had been blocked on the orders Russian Federal Service for Supervision of Communications, Information Technology and Mass Media (Roskomnadzor). Roskomnadzor had specifically ordered Novaya Gazeta to delete specific articles published between 24 February and 1 March 2022 on the war in Ukraine from its website. The very day the request for interim measures by Muratov was lodged, 3 March, the other applicant in the case, Telekanal Dozhd, decided to temporarily halt its operations as its website had been blocked and its reporting had become impossible.  On the same day also, Ekho Moskvy - the famous independent radio station - had been dissolved by its board because of its reporting of the conflict in Ukraine.

Events have been evolving very quickly. Just one day after the request was lodged, the Russian Federation introduced changes in its Criminal Code, with the effect of criminalising "the spread of knowingly untrue information about the actions of the Russian armed forces". The new prohibition went into immediate effect and included severe custodial and financial penalties. To avoid full closure, Novaya Gazeta halted its reporting on the war in Ukraine and deleted earlier published articles.

The wider context is one of crackdowns on media in Russia. With a combination of criminal prosecutions, closures, censorship and self-censorship, Russia's media landscape has been deteriorating for a number of years now. According to the NGO Reporters Without Borders in its annual world press freedom index, the Russian Federation was one of the least free countries in this respect, ranking 150 out of 180 states assessed in 2021. The last two weeks of war seem to have been the final blow, for now, at least to much of Russia's independent media.

Whatever the prospects Russia abiding by these interim measures, the action taken by the Court still signals that especially under the heaviest pressure, it should not be silent but continue as far as possible its work as guardian of the Convention.

The photo depicts the front page of Novaya Gazeta a day after the war started as a sign of solidarity with Ukraine. That day the newspaper was published in the Ukrainian language.

Russia will no longer participate in the Council of Europe: a problematic Member State who could not commit to peace

On 10 March 2022, Russia announced that it will no longer participate in the Council of Europe. In the coming days we will learn more whether Russia will submit a formal declaration of withdrawal pursuant to Article 7 of the Statute of the Council of Europe, and whether it will provide any reasons for this decision.
 
In a short statement that was issued today, the Russian Ministry of Foreign Affairs indicated that they will no longer participate in the Council of Europe in response to the EU's and NATO’s continued efforts to destroy the Council of Europe and the common humanitarian and legal space in Europe. I will refrain from engaging with the details of this "argument", which is nothing but a continuation of Russia’s perversion of international law and institutions. However, one way of understanding this statement is that Russia may leave Europe's main organisation on human rights, rule of law and democracy in response to its recent suspension related to the war in Ukraine.
 
If Russia chooses to withdraw from the Council of Europe or the latter chooses to expel the former, such an outcome should be analysed in the context of Russia’s long history of unwillingness to commit to peace in Europe.
 
Russia has never been an easy member of the Council of Europe. This was not only because it was the biggest violator of the Convention but primarily because of its wars and imperialistic foreign policy. A year before joining the Council of Europe, Russia’s admission process was interrupted because of the 1995 brutal conflict in Chechnya. In 1996, when Russia joined the organisation, the CoE rapporteur concluded that “Russia [did] not … meet all Council of Europe standards” but that “integration [was] better than isolation [and] cooperation [was] better than confrontation”. The Council was right to favour integration over isolation and to give Russia a chance. In many ways, this helped, even if minimally, improve human rights in Russia. 
 

Yet, again and again, Russia proved to be unwilling to commit to peace. Despite the 1996 PACE’s membership requirements that called for the withdrawal of Russian troops from Transdniestria, Russia’s army remained in Transdniestria. Its aggression against Georgia and Ukraine are a testament of its imperialistic foreign policy that contradicts the basic aims of the Council of Europe. 
 
Although a problematic member of the organisation, Russia’s eventual  withdrawal from the Council of Europe would present a sad development for Russians and other citizens falling involuntarily (including in Ukraine, Georgia, Moldova…) under the jurisdiction of Russia as it marks the end of the application of the ECHR in a State that is in dire need of human rights. Yet, this sad reality, with or without withdrawal from Russia, can only change when a new Russian Government is willing to genuinely commit to upholding both peace and human rights. Let us hope this future is not too distant.

ECHR issues interim measures concerning Russian military operations in Ukraine

Following a request made by Ukraine on 28 February, the European Court of Human Rights has today (1 March) issued interim measures concerning Russian military operations on Ukraine territory. 

The Court has "decided to indicate to the Government of Russia to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops". The decision further indicates that the ongoing military actions of Russia in Ukraine give "rise to a real and continuing risk of serious violations of the Convention rights of the civilian population, in particular under Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment or punishment) and 8 (right to respect for private and family life) of the European Convention on Human Rights."

Interim measures are urgent measures that aim to prevent an imminent risk of irreparable harm. As such, when the Court issues interim measures, a State party to the Convention is expected to instantly stop activities mentioned in interim measures. Yet, given the past practices of Russia's non compliance with interim measures in similar situations (e.g. 2014 in relation to Crimea), and its ongoing aggression in Ukraine one can hardly expect that Russia will comply with these interim measures. In fact, the mere fact that Russia is currently suspended from the Council suggests that the State is unwilling to comply not only with the Convention but also with the fundamental aims of the Council of Europe.

Ukraine, the Suspension of Russia in the CoE, and Infringement Proceedings in Turkish Kavala Case

As the very worrisome and sad events of the Russian invasion of Ukraine are rapidly and brutally unfolding this week, causing both human suffering and human rights violations, the very fabric of peace and the international rule of law in Europe seem to be deeply at stake. The Council of Europe has just announced suspending Russia's voting rights in the Council of Europe. It announced:

"In line with the Statute of the Council of Europe, the Committee of Ministers has today decided to suspend the Russian Federation from its rights of representation in the Committee of Ministers and in the Parliamentary Assembly with immediate effect as a result of the Russian Federation’s armed attack on Ukraine.

The decision adopted today means that the Russian Federation remains a member of the Council of Europe and party to the relevant Council of Europe conventions, including the European Convention on Human Rights.

The judge elected to the European Court of Human Rights in respect of the Russian Federation also remains a member of the Court, and applications introduced against the Russian Federation will continue to be examined and decided by the Court. Suspension is not a final measure but a temporary one, leaving channels of communication open."

And apart from Ukraine itself several neighbouring countries have announced a state of emergency.

It raises, once again, the issue of how the Council of Europe, and its ECHR system should deal with states flouting their human rights and other commitments. Earlier this week, another development at the Council of Europe also occurred as part of this broader debate. For only the second time in history, the Committee of Ministers, in its supervisory function re the execution of judgments of the European Court initiated an infringement procedure under Article 46, para. 4 ECHR. The situation relates to the case of the imprisoned businessman and human rights defender Mehmet Osman Kavala. In December 2019, the Court had found violations of both Articles 5 and 18 and indicated Turkey should release him. The Grand Chamber will now have to appraise whether Turkey has failed in its obligation to execute the binding judgments of the Court. A very rare step in itself.

The Court in 2021: (worrying) facts and figures

Each year, the European Court of Human Rights issues annual reports that provide an overview of its activities, case-law and other facts and figures. The 2021 reports were issued last week, and are available here, here and here

The overview of the Court’s case-law showcase a summary of key judgments that have further elucidated or developed standards under each Convention article. For example, it elaborates how Georgia v. Russia II has shaped the understanding of extraterritoriality under Article 1, how Kurt v Austria has strengthened the standards of protection with regards to domestic violence under Article 2, and so on.

Facts and figures show the number of cases received, allocated and decided by the Court, as well as what rights have been predominantly violated in Europe and by whom.

Within a year, the Court has issued 1105 judgments in relation to more than 3000 applications (some cases were joined), and has decided more than 36000 applications with a judgment, decision or by striking the case out of the list.

More than 20% of the judgments concerned the right to a fair trial, 19% in relation to the prohibition of torture, 18% in relation to the right to liberty and security and 9% concerning the right to respect for private life.

Similar to last year, a quarter of all applications before the Court were lodged against Russia, 21% against Turkey, 16% against Ukraine, 8% against Romania, and 5% against Italy. It is worrying that, just like in the previous years (see here and here) more than 75 % of applications were brought against 5 states only. These facts and figures suggest that the number of cases before the Court cannot be reduced only by reforming the 'machinery'. A more meaningful and holistic analysis is needed to look at the causes and types of violations, and how to ensure that all States, and in particular the 'usual suspects' that top the number of applications, take seriously the obligation to respect human rights, as enshrined in Article 1 of the Convention. 

New Thematic Factsheet on Roma and Travellers

The Department for the Execution of Judgments of the ECHR has issued a new thematic factsheet on the execution of the Strasbourg Court judgments on 'Roma and Travellers'. The Council of Europe uses the terms 'Roma and Travellers' to encompass the wide diversity of certain disadvantaged groups, including Roma, Balkan Egyptians, Eastern groups (Dom, Lom and Abdal) and groups such as Travellers, Yenish, and the populations designated under the administrative term “Gens du voyage”, as well as persons who identify themselves as Gypsies.

Here is a brief summary of the factsheet:

"The European Court has underlined that as a result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority, therefore requiring special protection. It has noted that their vulnerable position means that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases.

The new factsheet provides examples of general and individual measures reported by States in the context of the execution of the European Court’s judgments, concerning notably: access to justice, right to respect for private and family life, including issues related to forced sterilisation of Roma women, protection from hate crime and housing rights, protection of property and right to education."

New ECHR Readings

Please find below a new batch of ECHR-related publications of the last few months. More will follow in some of our subsequent posts.

● Başak Çalı and Esra Demir-Gürsel, ‘The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal’, ECHR Law Review, 2021, Vol. 2, Issue 2:

‘This article introduces the Special Issue on ‘The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections’. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE’s ability to produce timely, consistent, and co-ordinated responses against systemic threats.’

● Kushtrim Istrefi and Cedric Ryngaert, ‘Makuchyan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life’, ECHR Law Review (14 September 2021) [case note]

● Elif Erken, ‘Non-Governmental Organisations and National Human Rights Institutions monitoring the execution of Strasbourg Judgments: An Empirical Perspective on Rule 9 Communications’, Human Rights Law Review, 2021, Vol. 21, Issue 3, pp. 724–751:

‘This article considers a scarcely explored perspective in relation to the execution of judgments of the ECtHR, notably, the formal involvement of NGOs and NHRIs. Rule 9(2) of the Committee of Minister Rules’ allows NGOs and NHRIs to participate in the supervision process for the execution of the Court’s judgments by submitting reports (Communications) in which these actors review and assess domestic authorities’ performance with respect to judgment execution. On the basis of interviews with important stakeholders, this article provides an all-round user-based perspective of this Rule 9 mechanism and its perceived impact. Doing so elucidates whether the Rule 9 procedure allows NGOs and NHRIs to engage in the important cycle of reporting and pressuring for change, the conclusions of which are important in assessing if and how Rule 9 works to advance the execution of judgments of the ECtHR.’

● Toon Moonen & Laurens Lavrysen, ‘Abstract but Concrete, or Concrete but Abstract? A Guide to the Nature of Advisory Opinions under Protocol No 16 to the ECHR’, Human Rights Law Review, 2021, Vol. 21, Issue 3, pp. 752–785.

‘In constitutional adjudication, a well-known distinction exists between abstract and concrete review. Under abstract review, a court evaluates a rights interference detached from any particular application to the facts of a case. Under concrete review, the review arises as an element of adjudication of specific facts. In this contribution, we explain theoretically how this distinction plays both at the macro level of a review system and the micro level of specific cases. These concepts are then used to explore and understand the advisory procedure recently introduced by Protocol No 16 to the European Convention on Human Rights. We argue that this mechanism theoretically provides for a type of review that is more abstract than the review exercised under the European Court of Human Rights’ contentious jurisdiction, yet still allows for important elements of concreteness to enter the analysis. This is confirmed by Advisory Opinions Nos 1 and 2.’

● Yutaka Arai-Takahashi, ‘Arguable but Superfluous? – Judicial Policies of the European Court of Human Rights in Relation to the Right to an Effective Remedy Before a National Authority Under Article 13 ECHR’, Israel Yearbook on Human Rights, 2021, Vol. 51.

 

● Eugénie Delval, ‘The Kunduz airstrike before the European Court of Human Rights: a glimmer of hope to expand the Convention to UN military operations, or a tailored jurisdictional link?’, The Military Law and the Law of War Review, 2021, pp. 244-275:

‘On 16 February 2021, the Grand Chamber of the European Court of Human Rights ruled, in Hanan v. Germany, that Germany exercised its extraterritorial jurisdiction for the purpose of its procedural obligation under Article 2 of the European Convention on human rights to investigate the airstrike it carried out in Afghanistan within the framework of a United Nations Security Council resolution. To establish an extraterritorial jurisdictional link, the Court relied on the ‘special features’ threshold that it has recently introduced in its jurisprudence, along with the threshold of the ‘institution of a criminal investigation’. This potentially extends the standards of protection under the ECHR to situations where Contracting States are carrying out massive military operations in armed conflict, such as airstrikes, even within the framework of a UN mandate. Nonetheless, the Court remains cautious not to formulate general theories of jurisdiction and retains a very strict (and casuistic) control over the new jurisdictional thresholds.’

● Lorenzo Acconciamessa, ‘The Case Law of the ECtHR in 2020 in the Light of the Principle of Systemic Harmonisation’, in Philip Czech et. al. (eds.), European Yearbook on Human Rights, 2021 (Intersentia 2021).

And finally, Yota Negishi, of Seinan Gakuin University in Japan, has published monograph with a comparative study of the ECHR and the Inter-American Human Rights system, entitled Conventionality Control of Domestic Law: Constitutionalised International Adjudication and Internationalised Constitutional Adjudication, with Nomos:

'Through gaining lessons from the doctrine of constitutionality control, the book deals principally with conventionality control achieved by judicial adjudicators. This monograph fills the gap in comparative international human rights law by analysing the practice of conventionality control in Europe and Latin America. Based on the empirical data, the author normatively envisions a ‘trapezium’ model of conventionality control with the features of openness, substantivism and human-centrism, which overcomes the limits of the closed, formalist, and State-centric ‘pyramid‘ model.'

ECHR MOOC Starts Again on 10 February

Utrecht University's free Massive Open Online Course (MOOC) on the ECHR is starting again this week, on 10 February 2021. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by myself (Antoine Buyse) and my Utrecht University colleagues professor Janneke Gerards and Claire Loven. This is the abstract of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:

Online Seminar on the ECHR: Environmental Claims; Contemporary Issues

On Wednesday 9 February 2022,from 14h00 to 17h00 GMT, the Human Rights Law Centre of the University of Nottingham is organising an online seminar on the ECHR. This is the announcement by the organisers:

'The Seminar is being held in honour of Emeritus Professor Alastair Mowbray, a leading academic expert on the ECHR, who recently retired from the Law School, University of Nottingham. His major works included The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights and Cases and Materials on The European Convention on Human Rights.

The first session is concerned with environmental and climate change claims. There is widespread interest in these issues, particularly after the UN Climate Change Conference (COP26) (2021). The second session considers a number of major contemporary issues under the ECHR.'

The seminar will be held in MS Teams and can be joined through this link. This is the programme:

Session I: 2 - 3:30pm: The European Convention on Human Rights: Environmental Claims

Chair: Professor Dominic McGoldrick, University of Nottingham

2:00 - 2:05pm: Introduction

2:05 - 2:25pm: ‘Adjudicating Environmental Claims under The European Convention on Human Rights’ Lucy Maxwell, Climate Litigation Network.

2:25 - 2:45pm: ‘Remedies before the ECtHR and their Potential for Climate Change Cases’ Corina Heri and Reka Piskoty, University of Zurich, Switzerland.

2:45 - 3:05pm: ‘Children’s rights and environmental claims: strategic litigation’ Professor Aoife Nolan, University of Nottingham.

3:05 - 3:30pm: Questions and Discussion

Fifteen minute refreshment break

Session II: 3:45 - 5:00pm: The European Convention on Human Rights: Contemporary Issues

Chair: Emeritus Professor David Harris, University of Nottingham

3:45 - 3:50pm: Introduction

3:50 - 4:10pm: ‘The right of individual application in 2022: still a cornerstone of the Convention?’ Professor Ed Bates, University of Leicester.

4:10 - 4:30pm: ‘The influence of human rights on the development of the tort of misuse of private information in English law’ Judith Skillen, University of Nottingham.

4:30 - 4:50pm: ‘Human Rights Dialogue in English Criminal Procedure?’ Professor Paul Roberts, University of Nottingham.

4:50 - 5:00pm: ‘Concluding Reflections’, Emeritus Professor Alastair Mowbray, University of Nottingham.

Public Lecture on Positive Obligations under the ECHR - Within and Beyond Boundaries

On 10 March, the University of Liverpool is hosting an online public lecture by Dr. Vladislava Stoyanova on Positive Obligations under the European Convention on Human Rights - Within and Beyond Boundaries. Here is a brief description of the event:

'The development of positive obligations has been one of the hallmarks of the work of the European Court of Human Rights (ECtHR or the Court) in interpreting the European Convention on Human Rights (ECHR). Various issues from various spheres of life have been reviewed by the Court as involving possible breaches of positive obligations. Given the extensive regulatory functions of the State and the enormous breadth of state activities, any harm could potentially be a ground for making an argument that the State failed to fulfil its positive human rights obligations by failing to prevent or mitigate harm or risk. As a result, it is rather unclear under which conditions positive obligations may be triggered and how far-reaching they may be, given how difficult it is to draw the boundaries of state responsibility for omissions. The difficulties in determining and delimiting the role of the State in the contemporary society contribute to this uncertainty.

The lecture will address these challenges by identifying the key analytical issues that need to be considered in determining whether a State is responsible under the ECHR for omissions. The focal question is whether and how omissions by the State can be conceptualised into failures to fulfil positive obligations. In addition to this technical analytical question, the project also reflects upon what is at stake for the political community when the triggering, the content, and the scope of positive human rights obligations are determined. A central question is then how the search for a balance between intrusion and restraint by the State, between protection and freedom from invasion, defines this community and pulls the analysis of state responsibility for omissions in different directions.

One of these key analytical issues is the competition between obligations. In particular, positive human rights obligations can compete, and even conflict, with other human rights obligations, both positive and negative. This is important since protection might lead to diversion of resources, potentially in breach of other positive obligations, and unjustifiable forms and levels of intrusiveness and coercion that might be in breach of negative obligations. The latter can be particularly disturbing in light of the tension between obligations that constrain state power (negative obligations) and obligations that mandate state power or demand its more expansive exercise (positive obligations). These tensions are relevant all the time when positive obligations are at stake, although they not always explicit in the Court’s reasoning. The tensions imply that the more the State protects certain interests, the less it might be able to protect and the more it might interfere with other interests.

The specific concern will be then how competing human rights obligations owned by the State need to be taken into consideration in the determination of the scope and the content of positive obligations, so that a possible protective overreach can be prevented. The speaker will first explain that obligations need to be specified so that tensions and competitions between obligations become cognizable. Once competing obligations become cognizable, they should be denoted a distinctive and special role (in contrast to competing general public interests) in the assessment of the reasonableness of the positive obligations. Then it will discuss considerations that can be relevant to addressing the tension between positive obligations and other (both positive and negative) human rights obligations corresponding to absolute, strictly qualified and qualified rights. These considerations include respecting the equal moral status of each affected individual, the relative importance of the affected interests grounding rights as related to the relative importance of the corresponding obligations, whether actions or omissions form the content of the obligations, and the determinacy of the harm and the affected individuals. Finally, while acknowledging the difficulties, it is proposed that the obligations can be farmed in such a way in terms of content and scope, so that accommodation is possible.'

You can register here.