New Session of MOOC on ECHR Starts Again on 2 November

In a week, on Thursday 2 November, Utrecht University's free Massive Open Online Course (MOOC) on the ECHR will start again! 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 my Utrecht University colleagues professor Antoine Buyse and professor Janneke Gerards. This is the description 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:

Systemic Problems Unveiled: The Yalcinkaya Case and the Demise of the Bylock Digital Evidence

By Dr. iur. Yasir Gökce

The Turkish Government has declared the Gülen Movement a terrorist organization and blamed the Movement for orchestrating the 2016 coup attempt. To identify the members of this organization, the Government has controversially decided that any individual who downloaded and/or used the ‘ByLock’ encrypted messaging application was part of the Gülen Movement and thus can be charged with terrorism membership. Thousands of affected individuals have found the measures to be erroneous and unlawful.

On 26 September 2023, the Grand Chamber of the European Court of Human Rights (Court or ECtHR) in Yalcinkaya v Türkiye examined the human rights implications of the use of the ByLock app. In this landmark judgment, the Court found a violation of Articles 6, 7 and 11 of the Convention. Referring to thousands of applications on its docket involving similar complaints, the ECtHR stressed that the problems which had led to findings of violations were systemic in nature and called on Turkey to take general measures as appropriate to address those systemic problems.

The case was lodged by the applicant, Mr. Yalcinkaya, who had been dismissed from his public service as a teacher with the state of emergency decree no 672 after the botched 2016 coup attempt and convicted of terrorism membership due to his alleged link with the Gülen Movement, an organization designated as terrorist by the Turkish Government. Such link was established in Mr. Yalcinkaya’s domestic penal proceedings from his alleged use of an electronic communication app, namely ByLock, his membership of a lawfully established trade union (Aktif Eğitim-Sen) and an association (Kayseri Voluntary Educators Association) and his use of a bank account.

In this contribution, I examine the analysis carried out by the European Court of Human Rights on the approach of the Turkish judiciary vis-à-vis the digital evidence under Articles 6, 7, 8, and 11 of the Convention, uncovering both what the Court well-appreciated and missed. The concluding paragraph elucidates why this judgment is of utmost importance for the human rights protection mechanism in Turkey.

The Court’s Findings under Article 7 of the Convention

Under Article 7 of the Convention, the ECtHR examines the ‘exclusive use’ argument of the Turkish government and its practical implications for the applicant. The government purports that the Bylock app was exclusively designed and used by the Gülen Movement for its secret communication needs, despite the fact that the app had been downloaded approx. 1 million times from open sources. Such narrative of the ‘exclusive use within a closed domain’ was dictated by the government on judicial authorities in the form of a technical expert report produced by the Turkish intel agency. Eventually, this narrative led the judicial authorities to summarily convict any individuals, including the applicant, whose digital footprints had been somehow discovered in Bylock servers, of terrorism membership, irrespective of the content of the messages exchanged or the identity of the persons with whom the exchanges were made (§ 258).

Against this backdrop, the Court first elucidates that, under the Turkish law and jurisprudence around terrorism membership, the elements of the crime are fulfilled “where the accused’s organic link with the armed organization is established, based on the continuity, diversity, and intensity of his or her activities, and where it is demonstrated that he or she acted knowingly and willingly within the organization’s hierarchical structure” (§ 184). The Court then reveals the automaticity and certainty with which the domestic courts equate the mere download and/or use of the Bylock app with the membership of an armed terrorist organization. In other words, an individual who allegedly used the app has met, as the Court reveals, the continuity, diversity, and intensity criteria, as well as the criterion of acting knowingly and willingly, prescribed in Turkish law (§ 264). Eventually, the Court concludes that the reliance on the mere use of the Bylock app without establishing the presence of the constituent material and mental elements of the offense in an individualized manner corresponds to an unforeseeable application of the law lying outside of what the law proscribes. Therefore, it holds that Turkey has violated the principles of legality and foreseeability as well as individual criminal responsibility, which are enshrined in Article 7 of the Convention (§ 267).

It is praiseworthy that the ECtHR examined the case within the ambit of Article 7 and to the extent that it concerns not only the applicant but all victims prosecuted and arrested owing to the ‘exclusive use’ narrative of the Turkish government. However, I find it unfortunate that the Court overlooked the fact that the Turkish judiciary had applied the material and mental elements of the offense retrospectively. In other words, at the time of the acts attributed to the applicant, namely the Bylock usage, the Gülen Movement was not proscribed as a terrorist organization and, on the contrary, enjoyed a wide and respectable presence in all sectors of Turkish society. Furthermore, it would have been, at the very least, an eye-opener for the Turkish government if the Court had scrutinized whether this secret communication app was used during and/or for the purpose of staging the 15 July coup attempt, which the government alleges, has been orchestrated by the Gülen Movement and due to which, by and large, the latter was declared as a terrorist organization. Yet another approach of the Court, which I also find unfortunate, is that it addressed the issue of using a secret communication app not primarily as a mere enjoyment of the freedom of expression and right to respect for private life but as potential conduct that might form the constituent elements of the offense of terrorism. On the contrary, such a rights-oriented approach was the one adopted in various Bylock-related opinions of the United Nations Working Group on Arbitrary Detention (UNWGAD).

The Court’s Findings under Article 6 of the Convention

The Court’s finding on the violation of the right to fair trial pertains to the applicant’s assertions concerning the integrity and reliability of the Bylock raw data as well as the legality of its collection and analysis by the Turkish intel agency, a.k.a. the MIT. As also acknowledged by the government, by the time a domestic court issued a seize order for the Bylock servers, the MIT had long collected the Bylock raw data and analyzed it not only for intelligence purposes but also to initiate criminal proceedings (§ 334). It remains unknown on what legal grounds the MIT collected the data and under compliance with which legal and digital forensic principles it examined those data and identified the users as potential terrorism suspects. For instance, a number of independent digital forensic experts (here, here, and here), which were repeatedly referred to by the applicant, uncover numerous traces of concrete manipulation of the data collected by the MIT as well as a biased analysis methodic such as to vindicate some pre-determined outcomes. The mere fact that the MIT has reduced the number of people who downloaded ByLock from over 1 million to 215,000, then to 102,000, and then to 91,000 raises serious concerns regarding the accuracy and reliability of the ByLock data.

Having been cautious in refraining from acting as an appellate court by analyzing the admissibility of the Bylock findings, the ECtHR scrutinizes the applicant's concerns summarized above under the principles of equality of arms and adversarial proceedings. In this vein, the Court examines whether the applicant was granted procedural safeguards that would enable him to raise those concerns in the criminal proceedings (§ 316, §317). The Court first determines whether the applicant’s concerns on the integrity, reliability, and legality of the Bylock findings lay at the core of the case and were essential for concluding it (§ 332, § 345). After establishing the essentiality and vitality of those concerns, the Court examines how the domestic courts reacted to them. The Court notes that the applicant’s persistent requests that the Bylock raw data be made available and accessible to him or be sent for an independent examination simply went unanswered. Nor the aforementioned inconsistencies and irregularities raised by the applicant were addressed by the domestic courts, as noted by the ECtHR. The Court concludes eventually that the applicant was deprived of sufficient safeguards to equip him with a genuine opportunity to challenge the evidence against him and conduct his defense in an effective manner and on an equal footing with the prosecution (§ 341). This conclusion led the Court to find the violation of the right to a fair trial enshrined in Article 6 of the Convention.    

Having observed that the individual internet traffic information and telecommunication records (a.k.a. CGNAT and HTS data) are in line with the data obtained by the MIT from the Bylock servers, the ECtHR indicated that it does not have sufficient elements to impugn the integrity and accuracy of the Bylock data (§ 323). It is unfortunate that, in this observation, the Court overlooked numerous traces of manipulation of the Bylock raw data documented in technical reports of independent digital forensic experts (here, here, and here), which the applicant relied upon throughout this case. These reports cast serious doubts on the integrity and accuracy of the Bylock data. Furthermore, the Court failed to appreciate the seriousness of the fact that the individual internet traffic information and telecommunication records had been obtained outside the statutory time limit. After the expiration of the retention period, those records were kept under the custody of the information and communication technologies authority and the MIT with no legal basis at all, as had been the case for the initial period of the Bylock raw data. In other words, those records are also fraught with illegality and lack of chain of custody and highly prone to manipulation. And yet the Court observed that the accuracy of the Bylock raw data could be substantiated with some records whose accuracy is itself under suspicion. Last but not least, the Court refrained from pronouncing a violation from the standpoint of the right to privacy enshrined in Article 8 of the Convention. Although a great volume of private communication data of the applicant was seized and processed unlawfully, unforeseeably, and irresponsibly, the Court considered his arguments to this effect peripheral and not having situated at the heart of his complaints, a reasoning which seems unsatisfactory (§ 371, §372).

Conclusion

Immediately after the publication of the judgment, the Turkish minister of justice displayed his resentment with the finding of violations, criticizing the Court for analyzing the evidentiary value of the Bylock findings and thereby acting as a “court of appeal” in contrary to its well-established precedence. This concern was also conveyed by the government in its submission in the form of a warning for the Court to refrain from acting “as a court of ‘fourth instance’ by questioning the conclusions reached by domestic courts or to substitute its own views for their findings” (§ 289). In the face of this remark, the Court adopts throughout the decision a cautious approach, whereby it keeps reminding that it is not competent to review the weight attached to evidence or to ascertain how digital evidence is to be collected or admitted in criminal proceedings (e.g., §243, §255, §302, §316, §412). On the other hand, the Court also reminds that it would remove such restrain when the domestic authorities reach conclusions or pronounce judgments in an arbitrary or manifestly unreasonable manner and to the extent that those conclusions and judgments infringe rights and freedoms protected by the Convention (§ 302, §304).

Overall, this landmark judgment of the Grand Chamber stands out, by and large, with its well-examination, meticulous scrutiny, and spot-on conclusions, and sets a powerful precedent for pending and prospective cases of similar nature. The judgment delivered a resounding message regarding the protection of fundamental human rights, as it uncovered severe violations of key provisions of the Convention. In parallel with the finding of the UNWGAD that the deprivation of liberty in Turkey is systematic, the Court describes the problems that had led to findings of violations as being systemic in nature. It takes attention to approximately 8,500 applications on the Court’s docket involving similar complaints under Articles 7 and/or 6 of the Convention and to tens of thousands of potential applications to come, as hinted at by around 100,000 ByLock users according to official figures from Turkey. Eventually, referring to Article 46 of the Convention, the Court calls on Turkey to take general measures as appropriate to address the systemic problems that led up to the violations stemming from the Turkish judiciary’s approach to Bylock evidence (for a deeper analysis on how the judgment should be adopted by the Turkish judiciary, see here). It remains to be seen whether Turkey will abide by the judgment, although President Erdogan's remarks on the judgment at the opening ceremony of the new legislative appears not reassuring. Against this backdrop, it is up to the victims to be proactive and vigilant and have the judgment included in their respective case dossiers or lodge applications for retrial on the basis of severe violations found in the judgment.   

Intersectional Rewrites Project

An interesting project has been launched online this year, entitled Intersectional Rewrites: European Court of Human Rights Judgments Reimagined. Leading eventually both to a book as well as to a blog series (see the call for blog contributions below), this is the summary of the project as worded by its creators:

'Intersectional Rewrites: European Court of Human Rights Judgments Reimagined imagines a jurisprudence that rises to the challenge of responding to these intersecting forms of oppression, discrimination, and other human rights harms. This volume will gather 15 recent judgments from the Court, rewritten by activists, practitioners, and academics based on the key learnings of intersectionality theory and praxis and help illustrate that people with intersecting identities experience discrimination not as an additive phenomenon somehow understandable through the simplistic lens of comparison, but in a complex form only comprehensible through a careful examination of their lived experience.

Blog Symposium

The Intersectional Rewrites project is hosting a blog symposium, dedicated to examining the role intersectional analysis plays and could play in the case law of the European Court of Human Rights. This blog symposium is designed to complement the Intersectional Rewrites book project by providing an open space for creative thinking on the issues in relation to a wider range of case law than can be covered in the book.  

Call for submissions

We invite submissions of blogs of no more than 1,500 words. Blogs should be submitted in English, by 31 October 2023, to blogsymposium@systemicjustice.ngo. A group of authors and editors of Intersectional Rewrites will select blogs for publication and offer editorial support. We expect blogs to appear on the website from January 2024.  

There is no restriction on authors, we invite: students, academics, practising lawyers, and anyone else interested in the subject to submit a blog. The only limitation on subject matter is that blogs should relate to the European Court of Human Rights and the critical paradigm of intersectionality. We expect bloggers will want to have a go at rewriting small parts of judgments or critique specific rulings, but we welcome other approaches. If you have doubts about your planned approach, feel free to get in touch.'  

New Book on the ECHR and the Court in French

Frédéric Krenc, the judge at the European Court of Human Rights elected in respect of Belgium, has published a new book entitled 'Une Convention et une Cour pour les droits fondamentaux, la démocratie et l’État de droit' [A Convention and a Court for fundamental rights, democracy, and the rule of law] with Anthemis Publishers. The book presents the Convention and Court based on the author's previous work as a practising lawyers and on his teaching at various Belgian universities, adding to this his more recent perspective as a judge within the Court. This is the abstract in French:

'La Convention européenne des droits de l’homme est un traité international qui reconnaît un ensemble de droits fondamentaux à tous les individus qui relèvent de la « juridiction » des États qui y sont parties.  Elle permet, en outre, à ces mêmes individus, en cas de méconnaissance de leurs droits, de saisir une juridiction internationale qu’est la Cour européenne des droits de l’homme, habilitée à rendre un arrêt contraignant à l’égard de l’État qui viendrait manquer à ses promesses.  

Le présent ouvrage propose un regard général sur ce système dont il s’attache avant tout à souligner la singularité et la nécessité. 

Il retrace la genèse et l’évolution de la Convention, avant d’envisager les valeurs qui la fondent, les principes interprétatifs qui la commandent, les droits et libertés qu’elle consacre, ainsi que les obligations qu’elle impose corrélativement aux États. 

Il s’emploie ensuite à circonscrire l’office subsidiaire de la Cour européenne des droits de l’homme. Il expose notamment les conditions de sa saisine, de même qu’il décrit la portée et l’autorité de ses arrêts qui visent autant à « rendre la justice » qu’à « dire le droit ».

Enfin, il n’esquive pas les questions et résistances que ce système suscite, de même que les défis majeurs – internes comme externes – auxquels il se voit aujourd’hui confronté.

Fondamentalement, l’ouvrage cherche à illustrer les vertus de ce mécanisme unique de garantie des droits fondamentaux institué au sortir de la Seconde Guerre mondiale pour servir la démocratie et l’État de droit en Europe.'

New Issue ECHR Law Review

The third issue of the year of the ECHR Law Review has just been published (Vol. 4, Issue 3). The issue contains one editorial, three guest editorial notes, two research articles and two book reviews. The contributions discuss such topics as the election process of judges at the European Court of Human Rights, the export of goods used for torture and Article 3 of the Convention and the state of life without parole in Europe, to name a few. This is the table of contents:

* Kanstantsin Dzehtsiarou, 'Reforming the Election Process of Judges of the European Court of Human Rights'

* Hans-Jörg Behrens, 'The Status of Judges: Intergovernmental Work on the Evaluation of Issues Relating to the Judges of the ECHR'

* Paul Mahoney, 'The Advisory Panel of Experts on Candidates for Election to the European Court of Human Rights'

* Helen Keller, 'How to Improve Independence and Impartiality of Judges of the European Court of Human Rights'

* Joëlle Trampert, 'The Export of Goods Used for Torture and the Applicability of Article 3 echr'

* Mugambi Jouet, 'The Abolition and Retention of Life Without Parole in Europe: A Comparative and Historical Perspective'

* Alla Tymofeyeva, 'Fundamental Rights Violations by Private Actors and the Procedure Before the European Court of Human Rights: A Study of Verticalised Cases, written by Claire Loven' (book review)

* Carla M Zoethout, 'Exporting the European Convention on Human Rights, written by Maria-Louiza Deftou' (book review)

Workshop on Writing and Publishing on the ECHR

The University of Essex and the Academy for European Human Rights Protection at the University of Cologne are co-organizing a workshop for early career researchers. The workshop, entitled 'Writing and Publishing in the Law of the ECHR: A Workshop for Early Career Researchers' take place on Monday 26 February 2024. This is the call for participants. And here is more information provided by the organisers of the workshop:

Background

The work and relevance of the European Court of Human Rights (ECtHR) and the European Convention on Human Rights (ECHR) are increasingly being debated among scholars and practitioners. Discussions about the potential (and limits) of the Convention system, the reform of the Court and (more recently, in particular) the Council of Europe, supervision and implementation of judgments - among others - have received significant scholarly attention. The Reykjavik Declaration, following Russia's expulsion from the organisation, could mark a new chapter in the development of the Council of Europe (although obviously much depends on what kind of follow-up action will be pursued).

In the context of the aforementioned expansion of scholarly work on the ECtHR and the ECHR system, Early Career Researchers (broadly understood) play (or should play) a crucial role in researching on the Convention system and participating in discussions on its future development. The purpose of this workshop is to initiate a conversation and exchange ideas around issues related to writing and publishing in the Law of the ECHR. It is primarily addressed to colleagues who are at early stages of their career, practitioners and everyone who might have a keen interest in the Strasbourg system. As subsequent sections indicate, the workshop is organised across a number of panels that will be led by experts in the field; however, we very much hope to organise an interactive and dynamic workshop.

Format and Sessions

The workshop consists of four panels and an optional group discussion. Although a full programme will be published and circulated nearer the time, the provisional titles of the sessions will be as follows:

9.45-10.45: How to write articles in the Law of the ECHR

11.00-12.00: Different methodologies in the Law of the ECHR

12.00-13.00: What kind of articles are editors interested in? Insights from editors of ECHR journals

15.45-16.45: What do judges or members of other organs of the Council of Europe read? How to bring legal research to the attention of the European Court of Human Rights?

In addition to the above panels, we are also planning to organise a number of optional roundtable discussions for on campus participants only (from 14.00-15.30), in which scholars may present developing ideas/ work in progress (though not full papers); these group discussions will be led by another more experienced scholar and organised on the basis of topics that will be provided.

The workshop will take place at the premises of the Academy in Cologne, while participation via zoom is also possible. There is a limited number of places for on campus and zoom participants (please see below on how to apply).

Confirmed speakers and panellists (in addition to organisers): Prof. Natasa Mavronicola, University of Birmingham; Prof. Kanstantsin Dzehtsiarou, University of Liverpool; Prof. Veronica Fikfak, UCL and iCourts; Prof. Giuseppe Martinico, Sant’Anna; Ana Vilfan Vospernik, Coordinator in the Directorate of the Jurisconsult, ECtHR.

How to participate in the workshop

If you are interested in participating in this workshop, please send your application at workshop-echr @ Protectionuni-koeln.de by 15 December 2023 and include the following information:

• A CV (including a list of publications, if applicable; and conference/ workshop presentations, if applicable).

• A letter of motivation (approximately 500 words) explaining how the workshop will be beneficial for you.

• Whether you intend to attend in person or via zoom

• And, should you wish to attend in person, a topic that you would like to discuss in the roundtable session with other participants (this is entirely optional, and the intention to participate in the group discussions will not constitute an advantage in the selection process). Should you wish to participate, please send a brief summary (approximately 300 words) of your topic in your submission.

The Selection Committee will aim to inform selected participants as soon as possible after the deadline and no later than mid-January 2024. Participation is free of charge and lunch and refreshments will be provided; however, on campus participants will need to cover their travel and accommodation expenses.

Questions: If you have any questions about the workshop, the different sessions or the host institution (the Academy in Cologne) please feel free to email: workshop-echr @ Protectionuni-koeln.de .

Registration for the Helga Pedersen Moot Court Competition Open

The Helga Pedersen Moot Court Competition is a Europe-wide moot court competition dedicated to the European Convention on Human Rights.  It was founded in 2012 by the European Law Students' Association (ELSA) and the Council of Europe. The Competition was named after the first female judge at the European Court of Human Rights, Helga Pedersen. 

The Competition simulates the proceedings before the European Court of Human Rights based on a fictional case. This year's case deals, inter alia, with an alleged violation of the right to freedom of expression and discrimination on the ground of expressing an opinion. The Competition gives students a unique opportunity to gain practical experience comparable to real pleading in front of the European Court of Human Rights.

The registration of teams for the 12th edition of the Competition is now open until the 30th of October 2023 23:59 CET. The Competition consists of three phases: the written round, the regional oral rounds and the final oral round. Each team needs to submit two written memorials in December 2023: one on behalf of the applicant, and one on behalf of the respondent state. In February 2024, each team participates in one of the three regional oral rounds, organized in three different cities (Ankara, St. Gallen and Dublin). The best 18 teams from the regional rounds compete in the final oral round, taking place in May 2024 in the Palace of Europe and at the European Court of Human Rights in Strasbourg. In addition to the experience that students gain from the Competition, every team member of the winning team is invited for a traineeship at the Court in Strasbourg. 

More information about the Competition can be found here. 

 

Good luck to all those participating in this year’s Competition!

New ECHR Readings

We have again collected a selection of ECHR-related academic publications of the last few months. Please find them below:

 

* Ludovica Chiussi Curzi, ‘Third parties before the European Court of Human Rights: Addressing Limits, Unfolding Potentials’ Questions of International Law, no. 100 (2023).

 

* Janneke Gerards, ‘Moving Away from Open Judicial Balancing Review: The European Court of Human Rights’ Approach as Illustrated by Its Case Law Relevant to the Covid-19 Pandemic’ The Law and Practice of International Courts and Tribunals 2023, vol. 22, no. 2, p. 365-383:

 

‘The Covid-19 pandemic truly has been called a global crisis. To fight the spread of the virus, many States have introduced measures that seriously restrict or affect fundamental rights, ranging from procedural rights to the freedom of movement and the right to personal autonomy. In Europe, it is to be expected that many cases concerning such rights infringements eventually will come before the European Court of Human Rights (ECtHR). This contribution aims to give an insight into how the Court will likely give shape to its proportionality test in such cases. It thereby predicts that open balancing review – for which the ECtHR is famous – will play a much less important role than methods of reasoning by analogy and procedural review.’ 

  

* Eva Brems, ‘Misunderstanding the margin? The reception of the ECtHR’s margin of appreciation at the national level’, International Journal of Constitutional Law (2023):

 

‘This exploratory article focuses on the receiving end of the margin of appreciation doctrine of the European Court of Human Rights (ECtHR), that is to say, the response of national- level legislators and courts to ECtHR case law involving other states parties, that grants national authorities a wide margin of appreciation. The paper explores the risk that national authorities might misinterpret the margin of appreciation in such cases as a marker of human rights clearance of a rights-restrictive practice as such or as a prompt for domestic courts toward deference in their relationship with the legislative and executive powers. The paper finds anecdotal evidence of such misinterpretation by domestic legislators in the reception of SAS v. France. In addition, an examination of recent fundamental rights case law of the Belgian Constitutional Court illustrates the existence of a problem of misunderstanding the margin of appreciation at the level of domestic courts.’

  

* Marisa Iglesias Vila, ‘Who misunderstands the margin of appreciation? A reply to Eva Brems’, International Journal of Constitutional Law (2023):

 

‘This reply offers some critical reflections that tie into the assumptions of Eva Brem’s interesting study of the risk of national authorities’ misunderstandings of the margin of appreciation conceded by the European Court of Human Rights (ECtHR). Taking on board a cooperative conception of the principle of subsidiarity, this reply first questions the adequacy of the distinction between a systemic and a normative dimension of the margin of appreciation as the proper basis for assessing the risk of domestic misunderstanding of the margin of appreciation. Next, it raises some objections to the analysis that Brems makes of the ECtHR judgment in S.A.S. v. France, particularly her application of the normative dimension of the margin of appreciation to this example of possible misunderstanding. The reply argues that Brems’s assumption that the ECtHR conducted a procedural rationality review of the French burqa ban minimizes Strasbourg’s own contribution to the risk that other states, in similar cases, may misunderstand how human rights are to be applied to avoid misinterpreting their national margin of appreciation.’

  

* Maria A. Sanchez, ‘Admitting (to) the past: transitional justice in the European and Inter-American courts of human rights’ The International Journal of Human Rights, vol. 27, no. 8, pp. 1244-1266:

 

‘The Inter-American Court of Human Rights (IACtHR) and European Court of Human Rights (ECtHR) have developed divergent approaches to interpreting their temporal case admissibility criteria, despite those criteria being nearly identical on paper. This puzzling variation has important implications for the extent to which Americans and Europeans can pursue international legal recourse for human rights abuses committed during past civil conflicts and dictatorial regimes. The IACtHR has clearly established that states can be held responsible for ongoing human rights violations that originated prior to state accession to the Court. However, when victims of similar rights violations have submitted cases to the ECtHR, the Court has frequently declared their cases inadmissible. This article demonstrates that the divergent geopolitical origins of the ECtHR and IACtHR have driven the ECtHR’s narrower interpretation of its temporal jurisdiction relative to the IACtHR. Tracing this process sheds light on the conditions under which international courts can hold governments accountable for past human rights abuses in post-conflict societies.’

Research Report on Protocol 16 in Judicial Practice

How has Protocol 16 ECHR has been implemented and applied so far and could its use be improved? A research report commissioned by the Research and Documentation Centre of the Ministry of Justice of the Netherlands has just been published and presented to the Dutch Parliament this week. It was authored by a team of researchers here at Utrecht University, led Janneke Gerards and Claire Loven, with my collaboration (Antoine Buyse). The report, entitled 'Protocol 16: backgrounds, significance, effects and experiences' (my translation of the title; it is available only in Dutch for now) is based amongst others on a large number of interviews with national judges.

The report is in Dutch, but includes an English-language summary. In the near future an English-language article presenting the findings is envisaged. The Dutch press release can be found here. Below is the press release:

'Dutch highest courts have yet to see cases where European Court opinion could be useful
 
On 1 June 2019, Protocol 16 to the European Convention on Human Rights (ECHR) entered into force for the Netherlands. This allows the highest Dutch courts* to request an opinion from the European Court of Human Rights (ECtHR) on the interpretation or application of the ECHR. Four years after the Protocol entered into force, the Dutch highest courts have not yet made use of it. Foreign courts also prove  reluctant to submit requests for opinions to the ECtHR. Although they see the added value of the Protocol, most courts believe it is primarily up to them to interpret and apply national law. These are the main outcomes of a study conducted at Utrecht University, commissioned by the WODC and carried out by prof. dr. Janneke Gerards and dr. Claire Loven, with the assistance of prof. dr. Antoine Buyse.
 
The purpose of the Protocol is to promote the dialogue between the ECtHR and national courts. As a result, human rights can be better protected in national proceedings. In addition, the idea is that with a proper application of the ECHR in national court cases, complaints to the ECtHR can be avoided. 
When the bill was adopted in the Netherlands, there was much discussion about the added value of the Protocol, as well as about the need for such a procedure and its consequences in practice. At the request of the House of Representatives, it was therefore agreed to evaluate the functioning of the Protocol after four years. This study maps the first experiences with the Protocol on the basis of, among other things, literature research and interviews with Dutch and foreign judges, government representatives and experts.
 
Concerns over active ECHR interference in domestic issues
Protocol 16 has so far been ratified by 19 of the 46 member states of the Council of Europe and eight requests for opinions have been submitted on the basis of the Protocol, which have led to the Court issuing a total of six opinions. Several European countries are reluctant to sign or ratify the Protocol. The research shows that they fear the ECtHR will interfere too actively in national fundamental rights issues. On the other hand, both Dutch and foreign judges see added value when there are new legal questions on which the ECtHR has not yet given clear rulings. 
 
Implementation of the ECHR on the national level

Based on the limited number of opinions requested and issued so far, it is not possible to say whether the advisory procedure contributes positively to the implementation of the ECHR at the national level. Similarly, it is still uncertain if the Protocol will lead to fewer proceedings at the ECtHR. Such reduction was projected to be realised in matters involving a large number of similar legal cases. An opinion could provide clarity as regards the application of the ECHR in all such cases and thus help to solve them already at the national level. This was expected to lead to a lower number of applications to be lodged with the European Court. So far, however, requests have not dealt with such repetitive issues, but concerned unique cases or very specific ambiguities in existing ECtHR jurisprudence.
 
Considerations by Dutch courts for not submitting a request for an advisory opinion

Interviews with the Dutch courts show that there have not yet been any cases that they thought they could not resolve satisfactorily themselves, based on their own analysis of the ECHR and ECHR case law. Another factor is that many cases also have an EU law component. When there is ambiguity about the application of EU law, courts prefer to seek an interpretation from the Court of Justice of the EU (CJEU). In EU member states, this so-called preliminary ruling procedure – which courts are obliged to follow in some cases – thus may take precedence over the advisory opinions procedure. Thirdly, there is a perception that proceedings at the ECtHR can lead to delays in national proceedings. The courts find this particularly problematic in cases concerning, for example, detention or immigration, where a speedy decision is of particular importance. However, the study does show that at the moment, the duration of the advisory procedure is shorter than that of the proceedings at the CJEU.
 
Criteria for requesting advice

The researchers provide – partly based on the experiences of the Dutch and foreign courts interviewed – criteria for when submitting a request for an opinion is useful. So far, in the Netherlands, according to the highest courts, there have been no cases that met these criteria. It is thus impossible to say whether the Protocol is being used to its full potential and whether more use of it will be made in the future.'

New Book on Positive Obligations under the ECHR

Vladislava Stoyanova (Lund University) has published a new book entitled Positive Obligations under the European Convention on Human Rights. This is the abstract:

''It is beyond question that States have positive obligations under the European Convention on Human Rights (ECHR) to prevent and address harm and risks of harm. However, given the difficulties of determining and delimiting the role of the State, the conditions under which positive obligations may apply can be unclear. The search for balance between intrusion and restraint by the State—between protection and freedom from interference—further complicates the question of state responsibility for breach of positive obligations.

Vladislava Stoyanova directly addresses these challenges in Positive Obligations under the European Convention on Human Rights. By systematising the case law of the European Court of Human Rights, the book provides key insights into the elements crucial for ascertaining state responsibility for omissions - state knowledge, causation, and reasonableness. It outlines different kinds of positive human rights obligations and identifies the circumstances under which they can be breached.

Stoyanova reflects upon what is at stake for political communities when the triggering, content, and scope of positive obligations has been determined. She offers serious evaluation of the dangers of ECHR obligations whose scope might be too expansive or intrusive, as well as the conceptual hurdles of applying positive human rights obligations extraterritorially.

The definitive resource on ECHR positive obligations, this book is essential reading for academics, legal practitioners, and policymakers working across the diverse fields in which positive human rights obligations may apply.''