Three New Judges and Commissioner Elected

Last week, the Parliamentary Assembly of the Council of Europe (PACE) had a busy week in many respects, including in terms of elections. No less than three new judges were elected to the European Court of Human Rights. In addition, a new Commissioner for Human Rights was elected.

Stéphane Pisani was elected as judge to the European Court of Human Rights in respect of Luxembourg. He is a deputy Judge at the Administrative Tribunal and a deputy member of the Judicial Disciplinary Court of Luxembourg. He is also a member of the Superior Courts Network attached to the ECHR and has taught legal professionals about human rights. In the past, he was seconded to the registry of the Court.

Diana Petrova Kovacheva was elected as judge to the European Court of Human Rights in respect of Bulgaria. She is currently the Ombudsman (sic) of Bulgaria as well as a professor of international law and international relations. In the past, she also served as Minister of Justice and worked for various civil society organisations, specifically on anti-corruption.

Gediminas Sagatys was elected as judge in respect of Lithuania. For over a decade, judge Sagatys has been serving as a judge in Lithuania's Supreme Court. He is currently also the President of the Association of Judges of Lithuania. Previously, he has been a practising lawyer, academic, and legal advisor for the legislative and the executive in his country. He received his PhD on an ECHR-focused topic, 'The Right of the Child to Family Relations in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Law of the Republic of Lithuania. His election brings to conclusion a long, bumpy process after PACE had rejected the original list of three candidates in 2022 and the national pre-selection had to be redone.

Finally, Michael O'Flaherty, was elected as the new Commissioner for Human Rights. With his vast expertise in human rights, working in various capacities for both, academia, an NHRI (Northern Ireland Human Rights Commission), the United Nations (as member of the Human Rights Committee) and the European Union, where he led the Fundamental Rights Agency (FRA) for many years until very recently, he knows the global and European Human Rights ecosystems in and out. He will succeed the current Commissioner Dunja Mijatovic, who has been a very strong voice for human rights, for a six-year, non-renewable term on 1 April 2024. Within the ECHR system, the Commissioner has a right, as Article 36 of the Convention provides, to submit a third party intervention and take part in hearings in cases before the Court.

Congratulations to all of them!

Annual Press Conference of the Court's President

On Thursday 25 January 2024, the President of the ECtHR Síofra O’Leary held a press conference during which the results of the Court's activities and statistics for the year 2023 were presented. 

President O'Leary began the conference by stating that in the year 2023, the ECtHR progressed considerably in processing pending Inter-State cases relating to the conflict in Ukraine. A hearing on the merits took place in the Inter-State case between Ukraine and Russia concerning Crimea, and preparations for another hearing on admissibility and merits in three Inter-State cases against Russia (concerning events in Eastern Ukraine from 2014 until 2022 and the downing of flight MH17) is scheduled to take place this year. 

During the press conference President O'Leary spoke about some important events that happened in the past year. These include, among others, the adoption of the Reykjavik Declaration following the 4th Summit of Heads of State and Government of the Council of Europe in May 2023, the 75th anniversary of the Universal Declaration of Human Rights and the 70th anniversary of the entry into force of the Convention.

The President then presented some statistics on the activities of the Court in 2023. Again, 2023 was a year in which the Court was extremely active: it issued a total of 1014 judgments. The number of pending applications has decreased significantly by the end of 2023 (68,450 compared to 74,650 by the end of 2022). All statistical information about the activities of the Court is included in the Court's latest annual report. 

The opening speech by the President can be found here. A video of the press conference is available here. 

Updated Rules of Court on Recusal of Judges

Yesterday, 22 January, the newest version of the Rules of Court entered into force. Decided by the Plenary of the Court in December, they are part of a series of internal procedural reforms, also related to the Rules of Court, as we reported earlier here.

The newest change relates to Rule 28, on the recusal of judges in procedures at the European Court of Human Rights. The new Rule provides as follows:

Rule 28 – Inability to sit and recusal

1. A judge has the duty to sit in all cases assigned to him or her, unless, for the reasons set out in paragraph 2, he or she may not take part in the consideration of the case.

2. A judge may not take part in the consideration of any case if

(a) he or she has a personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties;

(b) he or she has previously acted in the case, whether as the Agent, advocate or adviser of a party or of a person having an interest in the case, or as a member of another national or international tribunal or commission of inquiry, or in any other capacity;

(c) he or she, being an ad hoc judge or a former elected judge continuing to sit by virtue of Rule 26 § 3, engages in any political or administrative activity or any professional activity which is incompatible with his or her independence or impartiality;

(d) he or she has expressed opinions publicly, through the communications media, in writing, through his or her public actions or otherwise, that are objectively capable of adversely affecting his or her impartiality;

(e) for any other reason, his or her independence or impartiality may legitimately be called into doubt.

3. Any judge who considers himself or herself to be unable to sit in a case to which he or she has been assigned, for one of the reasons listed in paragraph 2 shall, as soon as possible, in cases allocated to a Committee or Chamber formation, give notice to the President of the Section, who will decide whether the judge concerned should be exempt from sitting. In the event of any doubt on the part of the judge concerned or the President as to the existence of one of the grounds referred to in paragraph 2 of this Rule, that issue shall be decided by the Chamber. After hearing the views of the judge concerned, the Chamber shall deliberate and vote, without that judge being present. For the purposes of the Chamber’s deliberations and vote on this issue, he or she shall be replaced by the first substitute judge in the Chamber. The same shall apply if the judge sits in respect of any Contracting Party concerned in accordance with Rules 29 and 30.

4. Only parties to the proceedings may request recusal of a judge assigned to sit in their case for the reasons listed in paragraph 2 of this Rule. Any such request must be duly reasoned and lodged as soon as possible after the party concerned learns about the existence of such reasons. It shall be decided by the Chamber in accordance with the procedure described in paragraph 3 of the present Rule. The parties shall be informed whether or not their request has been accepted.

5. The provisions above shall apply, mutatis mutandis, in cases before the Grand Chamber, and – under the authority of the President of the Court – to judges acting as a single judge under Article 27 of the Convention and as duty judge in accordance with Rule 39 of the Rules of Court.

The background of the change is a further strengthening of judicial impartiality as a foundation for the rule of law, human rights, and the good administration of justice, as the President of the Court explains in an accompanying practice direction. It expressly codifies an already existing practice. 

Complementing this change, a full list of the different judicial formations operating within each of the five Sections, including the list of single judges designated by State, have been made public on the website of the Court. This way, parties in proceedings will be able to know more easily  which judges will sit on their case. The current changes were made after consultation with the Contracting Parties, organisations with experience in representing applicants, and several bar associations. 

For critical observers of the Court, the degree to which the Court itself aligns its practice with the guarantees of the right to a fair trial under Article 6 ECHR, which binds the Contracting Parties but not the Court itself, has always been a sticky point. This especially applies to length of proceedings - something which, by the way, is not mainly in the hands of the Courts, as it very much depends on means provided by the States. But for this other aspect, recusal of judges, safeguards for a fair trial have now been further strengthened.

The full text of the Rules of Court can be found here and more background information, translations and practice directions can be found on a dedicated page on the Court's website.

New Session of MOOC on ECHR Starts Again on 10 February

On 10 February 2024 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:

Webinar on 'The Evidentiary System of the European Court of Human Rights in Critical Perspective'

On 10 January at 14:00 CET, the Human Rights Centre of Ghent University is organizing a webinar launching the new special issue of the ECHR Law Review entitled 'The Evidentiary System of the European Court of Human Rights in Critical Perspective'. The contributors to the special issue will present their research articles, followed by a discussion and general Q&A. The webinar will discuss questions such as: how does evidence work at the European Court of Human Rights? How does the adoption of a particular standard of proof impact the outcome of cases? Is the burden of proof distributed appropriately between the parties? And when does the Court (not) consider facts established?

This is the programme:

14:00 Nele Schuldt (DISSECT) Welcome and introduction

14:10 Marie-Benedicte Dembour (DISSECT) 'Beyond Reasonable Doubt at its Worst but also at its Potential Best: Ireland v the United Kingdom’s No-Torture Finding Dissected'

Discussant: Vassilis Tzevelekos (ECHR Law Review)

14:40 Kristin Henrard (Brussels School of Governance) 'The European Court of Human Rights and the ‘Special’ Distribution of the Burden of Proof in Racial Discrimination Cases: The Search for Fairness continues'

Discussant: Kanstantsin Dzehtsiarou (ECHR Law Review)

15:10 Break

15:15 Joseph Finnerty (Hertie School) 'When is a State’s ‘Hidden Agenda’ Proven? The Role of the Merabishvili’s Three-Legged Evidentiary Test in the Article 18 Strasbourg Case Law'

Discussant: Corina Heri (University of Zurich)

15:45 Grażyna Baranowska (Hertie School) 'Exposing Covert Border Enforcement: Why Failing to Shift the Burden of Proof in Pushback Cases is Wrong'

Discussant: Violeta Moreno-Lax (Queen Mary University of London and University of Barcelona)

16:15 Break

16:20 Anne-Katrin Speck (DISSECT) General remarks, followed by general Q&A

17:00 End of the proceedings

You can register here. 

New Special Issue ECHR Law Review

Right before Christmas the last issue of 2023 of the ECHR Law Review  was published (Vol. 4, issue 4). This special issue, edited by Marie-Benedicte Dembour (Human Rights Centre, Ghent University), looks at the way evidence works at the European Court of Human Rights. The issue contains one editorial and four research articles. This is the table of contents:

* Marie-Bénédicte Dembour, 'The Evidentiary System of the European Court of Human Rights in Critical Perspective'

* Marie-Bénédicte Dembour, 'Beyond Reasonable Doubt at its Worst – But Also at its Potential Best: Dissecting Ireland v the United Kingdom’s No-Torture Finding'

* Kristin Henrard, 'The European Court of Human Rights and the ‘Special’ Distribution of the Burden of Proof in Racial Discrimination Cases: The Search for Fairness Continues'

* Joseph Finnerty, 'When is a State’s ‘Hidden Agenda’ Proven? The Role of the Merabishvili’s Three-Legged Evidentiary Test in the Article 18 Strasbourg Case Law'

* Grażyna Baranowska, 'Exposing Covert Border Enforcement: Why Failing to Shift the Burden of Proof in Pushback Cases is Wrong'

New Thematic Factsheet on Reproductive Rights

The Council of Europe's Department for the Execution of Judgments of the European Court of Human Rights has just issued a new thematic factsheet on how judgments of the Court have helped to protect and advance reproductive rights. 

Here is a brief description:

'Under the European Court’s case law, the notion of “private life” within the meaning of Article 8 (right to respect for private and family life) of the European Convention on Human Rights incorporates the right to respect for both the decisions to become and not to become a parent. Thus, the European Court addresses under Article 8 issues related to the protection of reproductive rights, such as prenatal medical tests, medically assisted procreation, access to abortion, sterilisation procedures and protection of medical data. In some cases, the Court also examined issues related to the protection of reproductive rights under other Articles, such as Article 3 (the prohibition of torture or inhuman or degrading treatment or punishment), Article 6 (regarding the right of access to a court), Article 10 (freedom of expression), Article 14 (prohibition of discrimination), or Article 1 Protocol No. 1 (protection of property).

Under the European Court’s case law, the notion of “private life” within the meaning of Article 8 (right to respect for private and family life) of the European Convention on Human Rights incorporates the right to respect for both the decisions to become and not to become a parent. Thus, the European Court addresses under Article 8 issues related to the protection of reproductive rights, such as prenatal medical tests, medically assisted procreation, access to abortion, sterilisation procedures and protection of medical data. In some cases, the Court also examined issues related to the protection of reproductive rights under other Articles, such as Article 3 (the prohibition of torture or inhuman or degrading treatment or punishment), Article 6 (regarding the right of access to a court), Article 10 (freedom of expression), Article 14 (prohibition of discrimination), or Article 1 Protocol No. 1 (protection of property).

The present factsheet provides examples of general and individual measures reported by States in the context of the execution of the European Court’s judgments, concerning the: protection of mothers against discrimination, access to medically assisted procreation, regulation of home births, recognition of parent-child relationship in cases of surrogate motherhood, access to lawful abortion and to information on abortion, non-consented sterilisation, protection of personal data and access to medical records, and other issues.'

New ECHR Readings

In the last batch of readings of 2023 related to the European Convention on Human Rights and its Court, please find our selection below. We wish all our readers a good holiday season!

* Helen Keller and Viktoriya Gurash, ‘Expanding NGOs’ standing: climate justice through access to the European Court of Human Rights’ Journal of Human Rights and the Environment (2023), vol. 14, no. 2, p. 194-218:

 

‘Due to the nature of environmental litigation, expanding the standing of actors that could bring claims to the European Court of Human Rights (ECtHR) – such as non-governmental organizations (NGOs) – has become a pressing need. This article explores the current approach to NGOs’ standing to bring environment-related claims before the ECtHR. In particular, by drawing on the Aarhus Convention, the article explores NGOs’ important role before the ECtHR given their recognized right to environmental information, as well as their role in upholding the right to a fair trial at national level. In conclusion, it is argued that NGOs should be given a more prominent role in environmental cases and that the dichotomy between the case law regarding NGOs’ standing in claims under Articles 2, 3 and 8 on the one hand, and Articles 6 and 10 on the other, is outdated.’

 

* Helga Molbæk-Steensig and Alexandre Quemy ‘Judicial Independence and Impartiality: Tenure Changes at the European Court of Human Rights’, European Journal of International Law (2023), vol. 34, no. 3:

 

‘Judges should be impartial and independent, judging based solely on the law. Current constitutional literature suggests an important factor in securing this may be the length of tenure. The assumption is that judges with non-renewable terms are more independent than judges with renewable terms since they do not have to worry about reappointment, but proving this assumption empirically is not straightforward. Obstacles include difficulties in comparing different courts and the fact that there is often no obvious case outcome that proves independence. This article aims to overcome these obstacles with a mixed-methods study on the European Court of Human Rights during a time when the tenure rules changed. The study goes beyond the counting of votes and analyses the arguments used in separate opinions as indicators of independence. Our main findings are that, after the introduction of non-renewable terms, judges write more opinions overall, and more of them criticize the judges’ appointing states, while fewer defend it. We also find that judges on non-renewable terms are on average more likely to write opinions addressing violations as systemic problems and to use their opinions to provide guidance for their appointing states on implementing judgments and improving human rights protection.’

 

* Patrick Leisure, ‘Europe's Schoolhouse Gate? Strasbourg, Schools, and the European Convention on Human Rights’, Stanford Journal of International Law (2023), vol. 59, no. 2: 

 

‘Yale law professor Justin Driver's 2018 book, The Schoolhouse Gate, argues that American public schools have served as the most important sites of constitutional conflict in United States history. This Article, inspired by Driver's work, argues that primary and secondary schools similarly serve as some of the most significant forums of human rights conflict in the Council of Europe. In support of this argument, the Article adopts a two-tiered analysis. The first is court-centric, focusing primarily on the jurisprudence of the European Court of Human Rights involving schools. The second is society-centric and homes in on the crossroads at which the European Court of Human Rights, schools across the Council of Europe, and European societies meet. By making the above claim regarding the centrality of schools, this Article hopes not only to spur on further discussion about human rights within Europe's schoolhouse gate, but also to deepen the conversation regarding how schools as institutions interact with European supranational human rights protections.’

   

* Cosette D Creamer and Zuzanna Godzimirska, ‘Trust, Legal Elites, and the European Court of Human Rights’, Human Rights Quarterly (2023), Vol. 45, no. 4:

 

‘This article interrogates institutional sources of trust distinct to the European Court of Human Rights (ECtHR). Drawing from interviews with ECtHR officials and legal elites, the article identifies practices related to access, procedure, and performance that are central to direct stakeholders' evaluations of judicial trustworthiness. Elite trust is necessary for the continued operation of judicial bodies, and these stakeholders act as intermediaries with the potential to shape public perceptions. The article's findings have important implications for ECtHR's continued relevance, especially given the mounting resistance to it in recent years.’

* Ottavio Quirico, ‘Sources of EU Law: A Review in Light of the Accession of the Union to the ECHR - A Matter of Principle’, Hungarian Yearbook of International Law and European Law (2023):

 

‘The accession of the EU to the ECHR raises several problems. This article argues that procedural problems are fundamentally rooted in substantive issues, with specific regard to the sources of EU law. More precisely, in order to allow accession, it would be essential to review Article 6(3) TEU so as to lower the level of the ECHR as a source of general principles of EU law to (at least) the same hierarchical level as the founding treaties. Yet, while this solution can be satisfactory for EU Member States that are parties to the ECHR and its protocols, it is not necessarily appealing to non-EU States that are parties to the ECHR system, similar to the stall generated by the Energy Charter Treaty in the field of investment. Furthermore, the solution fundamentally clashes with the consolidated priority of the general principles of EU law crystallized in cases such as Kadi.’

* Sergio Salinas Alcega, ‘The Invasion of Ukraine from the Point of View of the European Court of Human Rights: Extraterritorial Responsibility of Russia and (Un)Control of International Humanitarian Law’, Revue Québécoise de Droit International (2023):

 

‘The negative impact of the invasion of Ukraine by Russia on international law has many dimensions, the massive and flagrant violation of human rights being one of the most relevant. From this perspective, the role of international mechanisms for the protection of these rights, and notably the European Convention system and the European Court of Human Rights (ECtHR), has become particularly important. The Strasbourg Court’s approach can be divided into two different aspects, which are obviously interrelated. The main aspect relates to the scope of the European Convention on Human Rights’ (ECHR) responsibility regarding Russia. Considering that relevant acts are committed by Russia outside its territory, the question of the extraterritorial application of the Convention becomes crucial. The second aspect relates to how the Strasbourg judges see the interplay between the ECHR and international humanitarian law, and especially their role in exercising a certain amount of control over the latter’s application. Here, the Court could help remedy the shortcomings that currently exist in terms of the availability of specific mechanisms to demand responsibility from the States for the violation of norms in this domain of international law. Regarding both aspects, there is already a rich and developing Strasbourg jurisprudence even if, of course, it is not exempt from criticism. The acts committed by Russia in Ukraine may make it possible to revisit this jurisprudence and allow it to overcome certain shortcomings which have been identified.’

 

* Aikaterini Tsampi, ‘Islandness and the European Court of Human Rights: Marooning Rights on Islands?’, Netherlands International Law Review (2023), vol. 70 no. 2:

 

‘Some 80 million people live on European islands. It thus comes as no surprise that a number of cases brought before the European Court of Human Rights developed on and/or pertain to islands. What is surprising, though, is that this jurisprudential corpus has not been explored with a view to assessing whether islandness has or should have a role in the implementation of the European Convention on Human Rights on islands. The present paper contemplates the strengths of an islandness-based approach in the implementation of human rights through the mapping of the weaknesses, the potentials and the lost opportunities in the case law of the Court with respect to such an approach. In this context, findings from the field of Island Studies are also considered. By focusing on the ECHR habitat, the present paper exemplifies, in particular, the untapped potential of an islandness-based approach in the development of international human rights law in general.’

New Book on Compliance with ECtHR Judgments

Ramute Remezaite (European Human Rights Advocacy Centre, School of Law, Middlesex University) has just published a new book entitled Compliance with Judgments of the European Court of Human Rights: States on a Spectrum of Democratisation. This is the abstract:

'What does compliance with judgments of the European Court of Human Rights (ECtHR) look like in states on the spectrum of democratisation? This work provides an in-depth investigation of three such states—Armenia, Azerbaijan and Georgia— in the wider context of the growing 'implementation crisis' in Europe, and does so through a combined lens of theoretical insights and rich empirical data.

The book offers a detailed analysis of the domestic contexts varying from democratising to increasingly authoritarian tendencies, which shape the states’ compliance behaviour, and discusses why and how such states comply with human rights judgments. It puts particular focus on ‘contested’ compliance as a new form of compliance behaviour involving states’ acting in ‘bad faith’ and argues for a revival of the concept of partial compliance. The wider impact that ECtHR judgments have in states on the spectrum of democratisation is also explored.'

New Book on the ECHR and the Western Balkans

Venera Kabashi (University of Zurich) has just published her dissertation entitled The ECHR and the Western Balkans: Bringing the Convention Home. The book is published by EIZ (Europa Institut an der Universität Zürich) Publishing and is available as an open access book. The dissertation analyses the impact and the effects of the Convention and the case-law of the Court in Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia and Serbia. 

This is the abstract:

'What does it ultimately take to bring the ECHR home in all Western Balkans States and embed it properly within these domestic legal orders? This is the main query of this PhD thesis. How have the domestic courts and other domestic authorities reacted following violations found at the Strasbourg level in respect of their State? How often do the highest domestic courts in the Western Balkans engage in Convention talk and what is the quality of such judicial dialogue? What are the roles of the ECtHR and of the domestic courts in view of their shared responsibility to secure and ensure effective protection of Convention rights? When can the Strasbourg Court comfortably defer to the ratio decidendi of the domestic courts and other domestic authorities? What has been the impact and effects of the Convention and the ECtHR’s case-law in Albania, Bosnia and Herzegovina, Montenegro, Kosovo, North Macedonia, and Serbia? What are the good and not so good ECHR embeddedness practices that may be noticed across the Western Balkan States and what are the recommendations that this study suggests with a view to achieve better embeddedness/domestication of the ECHR? These are only some of the remaining research questions that are explored in this PhD monograph.'