BBC Podcast Episode on the UK and the ECHR

Last week BBC Radio 4's 'The Briefing Room' released a podcast episode on the United Kingdom and the European Convention on Human Rights. In the episode, Ed Bates (University of Leicester), former president of the ECtHR Robert Spano, Joelle Grogan (UK in a Changing Europe) and Tom Hickman (University College London) discuss, inter alia, the UK's involvement in the drafting of the Convention, the impact of the Convention on the UK, the relationship between the UK's Human Rights Act and the Convention, and the consequences if the UK would decide to leave the ECHR. 

New Book on the ECHR's Impact on National Private Law

Matteo Fornasier (Ruhr University Bochum)) and Maria Gabriella Stanzione (University of Salerno) have co-edited a book recently published by Intersentia, entitled The European Convention on Human Rights and its Impact on National Private Law: A Comparative Perspective. This is the abstract:

''Originally, the European Convention on Human Rights (ECHR) was meant to protect the rights and freedoms of individuals against interference from the state. However, following the landmark ruling of the European Court of Human Rights (ECtHR) in the case of Marckx v Belgium, it has become apparent that the ECHR matters also in the ‘horizontal’ relationships between private parties. Over the last two decades, the ECHR has come to play a major role in a large number of private law issues. As a result, the case-law of the ECtHR has triggered significant changes in Contracting States’ domestic private laws. The aim of this book is to provide a broader view of the impact of the ECHR on national private law. To that end, it begins with a comparative analysis of the interaction between the ECHR and the States Parties’ domestic laws, focusing on two jurisdictions: Germany and Italy. The chapters forming the main part of the book explore, also from a comparative perspective, the influence of the ECHR on a wide range of fields of private law, including family law, data protection law, media law, copyright law, labour law as well as private international law and procedural law. The analysis of cases reveals many common features, but likewise some inconsistencies, in the decisions of the ECtHR involving issues of private law. The final part of the book focuses on a number of overarching issues, in particular on the role of comparative law in the reasoning of the ECtHR and on the contribution of the ECHR to European harmonisation of private law. What becomes apparent from the various contributions is that the ECHR and the case-law of the ECtHR are becoming important elements of a common European private law.''

Webinar on the Implementation of ECtHR Judgments concerning Legal Gender Recognition

On 13 July from 10:00 to 11:30 CET, the European Implementation Network (EIN) and Transgender Europe (TGEU) are organizing a webinar entitled 'From Court to Practice: Implementing European Court of Human Rights Rulings'. The online webinar will discuss the implementation process of ECtHR judgments concerning legal gender recognition.

Here is a description of the event:

'Recently, trans people have won many cases on legal gender recognition. These cases found that their human rights were violated by the country they live in. This is particularly apparent at the European Court of Human Rights. However, few people know what comes next. How can you make this legal win also translate into real change for trans people? 

Implementation, and the promised increase of rights for trans people, is often not automatic or immediate. Civil Society involvement is important to ensure that governments implement Court decisions properly. This is particularly relevant where broader measures, beyond the individual applicant, are concerned. For instance, when a ruling requires legal gender recognition procedures to be established.

Join us 13 July from 10:00 to 11:30 CEST to learn how to: 

- navigate the implementation process

- hold your country accountable for human rights violations

- get the most out of European Court of Human Rights rulings.

This webinar explains the implementation process. It will walk you through how NGOs and lawyers can get involved in ECtHR implementation. 

We will discuss practical steps in how to make a formal submission (Rule 9.2 submission). As this webinar is specifically focussed on legal gender recognition, we will also provide information on pending legal gender recognition cases in the implementation process.

Lawyers and activists will share their experiences with using the procedure to advance trans rights. Finally, you will have the opportunity to ask questions.

This webinar is of particular interest for lawyers and activists from countries that currently have cases in the implementation process. This includes Bulgaria, Georgia, Hungary, Lithuania, North Macedonia, and Romania. It is also for lawyers and activists thinking about bringing cases to the European Court of Human Rights and, of course, those with pending cases. '

You can register here for the event. 

New EIN-DRI Rule of Law Report 2023

Yesterday, the European Implementation Network (EIN) and Democracy Reporting International (DRI) launched their new report entitled 'Justice Delayed and Justice Denied: Report on the Non-Implementation of European Judgments and the Rule of Law'. The report addresses the issue of non-implementation of judgments of the European Court of Human Rights and the Court of Justice of the European Union in EU Member States, and contains recommendations for actions by the EU. 

Here is the summary of the report:

'The attacks on fundamental European values in recent years have continued to raise concern for European stakeholders – governments, the media, and citizens alike. The EU has introduced a series of policy measures designed to halt and reverse this phenomenon, ranging from the new annual rule of law review cycle to targeted measures, such as withholding structural funds from countries with severe infringements of the rule of law. 

In 2022, following civil society calls for the EU’s rule of law reporting to take into account the non-implementation of judgments from the two key European courts – the ECtHR and the CJEU (hereafter, “the European Courts”) – the EU Commission has included this type of data in its annual Rule of Law Report. This development allowed the EU to identify longer-term problems with the rule of law across all Member States that had previously been overlooked. 

The EU Commission’s annual rule of law review cycle should continue to take into consideration the non-implementation of judgments of the two key European Courts in order to holistically assess the overall records of compliance with the rule of law in all EU states. 

The European Courts do not stop delivering new rulings; in 2022 alone, the ECtHR delivered 1,059 violation judgments. This report reflects the fact that the non-implementation of judgments of the European Courts continues to be a systemic problem. Some 40 per cent of the leading judgments of the ECtHR relating to EU states from the last ten years have not been implemented. Each of these judgments relates to a significant or structural problem in the laws or practices of states, often with direct consequences for many citizens. 

Non-implementation of judgments of the ECtHR is a problem across the continent. Bulgaria, Finland, Greece, Hungary, Italy, Malta, Poland, and Portugal all have leading judgments that have been pending implementation for over five years. In Bulgaria, Finland, Hungary, Italy, Poland, Romania, Slovakia, and Spain, over 50 per cent of leading judgments from the last ten years are yet to be implemented. Bulgaria and Romania have each failed to implement over 90 leading judgments.

Hungary has a particularly serious non-implementation problem, with 76 per cent of the leading ECtHR rulings from the last ten years awaiting implementation. Overall, it is notable that the majority of the highest non-implementing countries, namely Bulgaria, Hungary, Italy, Poland and Romania, are also the ones with much broader and systemic rule of law issues, including attacks on the independence of the judiciary and on other oversight institutions. 

There are 616 leading ECtHR judgments pending implementation concerning EU states. The European Commission’s Rule of Law Report should continue capturing the entirety of these cases and set out recommendations to those Member States with particularly poor levels of implementation. 

In the past few years, with the visible decline in the situation regarding the rule of law in several EU Member States, the CJEU has been increasingly focused on rule of law issues, and particularly on measures meant to weaken checks on the government. Hungary, Poland, and Romania have emerged as the countries with the largest number of unimplemented rulings of this kind. A few alarming tendencies have appeared: the refusal to comply with CJEU judgments, coupled with an open contestation of the CJEU’s authority; sham compliance, through façade changes that do not significantly change the status quo; partial compliance, through measures that address only fragments of broader systemic problems and do not address underlying issues; and, finally, protracted failure to make institutional arrangements EU law-compliant, despite general declarations of commitment and recognition of the CJEU’s authority. The European Commission’s alertness and clarity of assessments can be critical to avoiding illusory compliance or significant delays in the implementation of necessary measures. It is also critical that the Commission does not reach conclusions about the adequacy of reforms prematurely, thereby de-legitimising any further efforts of national actors to address shortcomings emerging in practice. 

The European Commission has addressed the non-implementation of the relevant judgments of the CJEU in its rule of law reports, albeit in a somewhat sporadic fashion. A more critical, systematic and holistic assessment of the levels of implementation is warranted, as is flagging significant delays in implementation. 

It needs to be kept in mind that, due to the differences in access provisions, the CJEU does not get to rule on as many situations signalling rule of law risks as the ECtHR. The claim is that this is partly because of the Commission’s reluctance to resort to the CJEU, and partly because of the formal and informal obstacles national judges face in submitting requests for preliminary rulings.'

Call for Interest - Protecting Free Speech through ECtHR Implementation

The European Implementation Network (EIN) is calling on NGOs to express their interest to participate in a new project entitled 'Protecting Freedom of Expression by Supporting the Implementation of ECtHR judgments'. The project is aimed at protecting the right to free speech in every country in Europe where there is a ECtHR judgment pending implementation. Civil society will be provided with training, resources and mentoring in order to enable them to engage with the implementation process of the ECtHR judgments. The project will run for two years (

June 2023-May 2025).

Here is a description of the call:

'On 1st June, EIN launched a new project aimed at protecting freedom of expression by supporting ECtHR implementation, which will last for two years. The project aims at mapping ECtHR judgments pending implementation and NGOs working on freedom of expression, and helping them to use the ECtHR judgments implementation avenue to push for freedom of speech in Europe. 

A two-day event will be organised in the second half of November (20-21 November, Mediencampus, Leipzig) for partners in the project. Activities will include assistance with drafting written submissions to the Council of Europe’s implementation monitoring process, and advice on advocacy best practices at national level to promote ECtHR implementation; briefings on cases concerning freedom of expression or media freedom to delegates of the Committee of Ministers of the Council of Europe; training and a conference to share lessons-learnt and best practices among stakeholders, and reporting on the overall state of implementation of ECtHR judgments concerning free speech. 

EIN has a limited number of grants to allocate to NGOs committed to take part in our project. 

Applications from NGOs which are specialized in the defense of freedom of expression but do not work yet on the implementation of ECtHR judgments are welcome. If your NGO already works on the implementation of FoE pending judgments, you might also benefit from our support.  At this stage, if your organisation is interested in applying for a grant, we kindly ask you to fill in this form by the end of July.

Partners who will receive a grant from EIN in the frame of the project “Promoting Free Speech with European Judgments” will be considered Beneficiaries and will sign a subgrant agreement with EIN. For more information about the eligible activities, please see the Guidelines for beneficiaries.

The expertise of your organizations would be a valuable contribution to advocacy efforts for the implementation of ECHR judgments on free speech and can help turn judgments from the ECHR into real changes.'

More information about the project can be found here.

New Edition of 'General Principles of the European Convention on Human Rights'

Our Utrecht University colleague professor Janneke Gerards has published the new second edition of her textbook entitled General Principles of the European Convention on Human Rights. This textbook offers an explanation of all relevant substantive concepts and principles of ECHR law. 

This is the abstract:

''The European Convention on Human Rights is one of the world's most important and influential human rights documents. It owes its value mainly to the European Court of Human Rights, which applies the Convention rights in individual cases. This book offers insight into the concepts and principles that are key to understanding the European Convention and the Court's case law. It explains how the Court approaches its cases and its decision-making process, illustrated by numerous examples taken from the Court's judgments. Core issues discussed include types of Convention rights (such as absolute rights); the structure of the Court's Convention rights review; principles and methods of interpretation (such as common-ground interpretation and the use of precedent); positive and negative obligations; vertical and horizontal effect; the margin of appreciation doctrine; and the requirements for the restriction of Convention rights.''

New ECHR Readings

Please find below our newest batch of selected academic publications on the European Convention of Human Rights and the Court European Court of Human Rights and its case-law:

* Lize R. Glas, 'The age of subsidiarity? The ECtHR’s approach to the admissibility requirement that applicants raise their Convention complaint before domestic courts', Netherlands Quarterly of Human Rights, Volume 41, Issue 2 (2023):

‘The Copenhagen Declaration (2018) welcomed European Court of Human Rights (Court) ‘continued strict and consistent’ application of the admissibility criteria, ‘including by requiring applicants to be more diligent in raising their Convention complaints domestically’ when exhausting domestic remedies. This article answers the question whether the Court has indeed required applicants to be more diligent in this respect. The answer contributes to a body of academic research studying to what extent and how the Court has developed the subsidiarity principle. Additionally, the answer is of great practical relevance to applicants and their representatives, because they may have to change how they plead their case before the domestic courts with a view to bringing a complaint in Strasbourg. The case-law analysis performed in this article shows that, in some recent rulings, which mainly hailed from the UK, the Court has indeed required applicants to be more diligent in raising their Convention complaints domestically. However, the Court does not maintain this stricter line consistently.’

* Remigijus Jokubauskas and Marek Świerczyński, 'Digitalisation of Enforcement Proceedings', Utrecht Law Review,  Volume 19, Issue 1 (2023):

‘This article focuses on the compatibility of electronic enforcement proceedings and the right to a fair trial. Since Article 6 of the European Convention on Human Rights is applicable to enforcement proceedings, enforcement proceedings must be effective and satisfy the requirement of fair trial. Electronic enforcement proceedings need to find a fair balance between accelerated enforcement and protection of human rights. Thus, the authors analyse what procedural guarantees of fair trial are applicable in electronic enforcement proceedings and how they are compatible with the protection of human rights. In order to answer these questions, the authors first analyse what procedural guarantees of fair trial are applicable in electronic enforcement proceedings and what is the application, ratione personae, of Article 6 of the ECHR in such proceedings. Second, the authors focus on some specific issues of electronic enforcement proceedings: electronic issuance and submission of enforceable documents and electronic auctions. The analysis encompasses the relevant case law of the European Court of Human Rights, and the regulation of enforcement proceedings and case law of various states. Third, the authors discuss the problems of liability for violations of the right to fair electronic enforcement proceedings.’

* Vladislava Stoyanova, 'Framing Positive Obligations under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete', Human Rights Law Review, Volume 23, Issue 3 (2023):

‘Positive obligations under the European Convention on Human Rights can be framed with different levels of concreteness. The level chosen is essential for understanding the analytical distinction between the existence of an obligation and its breach. The level of concreteness is an important conceptual framework because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and concrete terms, and how the reasoning mediates between the two. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to the concrete measures to fulfill their positive obligations.’

* Jeremy Letwin, ‘Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights’, Human Rights Law Review , Volume 23, Issue 3 (2023):

‘I argue that a form of indirect utilitarianism can provide a sufficiently plausible justification for three crucial elements of the ECtHR’s doctrine of proportionality to be taken seriously as an account of this doctrine. I show how indirect utilitarianism can account for the relation between moral rights and Convention rights, the resistance to trade-offs that is a particular property of Convention rights and the nature of the public interest against which rights must be balanced. I argue that the indirect utilitarian account provides a coherent interpretation of the Court’s jurisprudence concerning: (i) aims that express moralistic external preferences and their legitimacy; (ii) balancing and the doctrine of the ‘essence of rights’; and (iii) the Court’s reasoning in Dickson v UK. I conclude by exploring the further work needed to establish more firmly this account’s plausibility as an interpretation of the Court’s doctrine of proportionality as a whole.’

* Marko Bošnjak and Kacper Zajac, ‘Judicial Activism and Judge-Made Law at the ECtHR’, Human Rights Law Review, Volume 23, Issue 3 (2023):

‘This paper contributes to an ongoing debate concerning the perceived judicial activism of the European Court of Human Rights (ECtHR). It argues that the output of the Court should be better viewed as the phenomenon of judicial law-making, not unlike in domestic jurisdictions. However, unlike many domestic legal systems, the European Convention on Human Rights framework promotes large quantities of judge-made law. This outcome results from a combination of objective factors that, taken together, enhance the process of judicial law-making by the ECtHR. Those factors include the applied mode of interpretation of the Convention, the approach to its construction, the weak textual basis, the existence of positive obligations, the lack of the doctrine of precedent, the extremely high case law and judicial turnovers, the concurrent legislative inactivity, the existence of the inter-state jurisdiction and the doctrine of autonomous meaning. At the same time, the judicial law-making is only hindered by the doctrine of subsidiarity, the principle of margin of appreciation and the Fourth Instance doctrine. As a consequence of this overwhelming dominance of the factors enhancing the process of judicial law-making over those that hinder it, the ECtHR produces large quantities of judge-made law.’

Webinar: "The Road to Reykjavik: Post Summit Reflections"

On 26 June between 12:00-14:00 CET, SWPS University, Riga Graduate School of Law and the University of Cologne are organizing a webinar entitled ''The Road to Reykjavik: Post Summit Reflections''. This webinar is the fourth and last of a series of webinars discussing some pressing issues facing the Council of Europe. During this last webinar, the Reykjavik Summit will be reviewed and the panelists will reflect on the future functioning of the Council of Europe. 

You can register here. 

New Issue ECHR Law Review

The second issue of the year of the ECHR Law Review has just been published (Vol. 4, issue 2). The issue contains one editorial, one guest editorial, two research articles and two book reviews. The contributions discuss such topics as immunities barring prosecutions of the crime of aggression, the predominance test under Article 18 ECHR and the role of common values in the jurisprudence of the Court, to name a few. This is the table of contents:

* Vassilis P Tzevelekos, 'Immunities Barring the Prosecution of the Crime of Aggression Against Ukraine: The Contribution of the ECtHR Case Law'

* Rosanne van Alebeek, Larissa van den Herik and Cedric Ryngaert, 'Prosecuting Russian Officials for the Crime of Aggression: What About Immunities?'

* Tobias Mortier, 'Reprehensible or Legitimate Aims? A Proposal for a New Approach to Article 18 ECHR in Light of its Predominance Test'

* Carl Emilio Lewis, 'The European Court of Human Rights and its Search for Common Values'

* Brice Dickson, 'Dilek Kurban, Limits of Supranational Justice: The European Court of Human Rights and Turkey's Kurdish Conflict'

* Leto Cariolou, 'Robert Spano, Iulia Motoc, Branko Lubarda, Paulo Pinto de Albuquerque, Marialena Tsirli (eds), and Aikaterini Lazana (assistant), Fair Trial: Regional and International Perspectives / Procès équitable: perspectives régionales et internationales, Liber Amicorum Linos-Alexandre Sicilianos'

Call for Papers on Defending Judicial Independence

The ELTE Institute of Political and International Studies (Hungary) and CNR Institute for International Legal Studies (Italy) have launched a joint call for papers. Together, they are organising a conference entitled 'Empowering Domestic Judiciaries: The Role of European Actors in Defending Judicial Independence.' The conference, with both ECHR and EU dimensions, will take place in Budapest on 12 and 13 October 2023. This is what the conference is about:

'The conference aims to discuss the role of European actors in promoting judicial independence across Europe. The conference focuses on formal and informal instruments used at the European level to help domestic judiciaries resist political pressure and autocratic tendencies undermining the rule of law and the independence of the judiciary. There has long been a lively debate about the use of European and international law in protecting the rule of law at the national level, and these debates regularly revolve around the developments in the relevant jurisprudence of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). Besides these formal practices, the organizers of the conference are particularly interested in the role of informal or soft instruments (such as the work of judicial networks, transnational associations, advisory bodies or academies) in empowering and mobilising domestic judiciaries to stand for their independence. What have these actors done so far? How do they help European courts (CJEU and ECtHR) to address the challenges to judicial independence adequately? And what more can they do to help judiciaries under attack by their governments? Furthermore, we also seek to reveal how transnational and national actors can work together to promote the independence of judges. The conference's main goal is to provide tools for domestic judiciaries to stand for their independence effectively and combat the full-blown politicisation of their profession.

The conference concentrates on judiciaries in Southern Europe and Central and Eastern Europe. Courts from these regions have been facing increasing challenges regarding their independence, and the organisation of these judiciaries show some common patterns which suggest that they can learn from each other. We seek to deliberate on both formal and informal practices available for promoting the resistance of domestic judiciaries and to evaluate their effectiveness in fighting for judicial independence at the national level. As we focus on judiciaries in Southern Europe and the CEE region, we are also interested in how an essentially apolitical, career judiciary can tackle the problem of politicisation.'

To apply, those interested can submit an abstract of no more than 500 words and a short CV with the most relevant publications by 31 July 2023. All information on the conference, including keynote speakers, themes and more, can be found here.