Friday, 14 July 2017

Recent Publications and Conference Reports on the ECHR

In the midst of Summer (although the weather here in the Netherlands does not reflect that), please find below a number of recent publications on the European Convention of Human Rights:

* A very interesting research paper on SSRN that I was made aware of at last week's ICON conference in Copenhagen: Mikael Rask Madsen, 'Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?', iCourts Working Paper Series, No. 100:

Has the Brighton Declaration produced a New Deal on European human rights in terms of engendering a new and more central role to national legal and political institutions? A greater subsidiarity? Against the backdrop of a systematic exploration of the case law of the European Court of Human Rights (ECtHR), the articles concludes that the ECtHR is indeed providing more subsidiarity following the Brighton Declaration. It does so by a greater use of the terms “margin of appreciation” and “wide(r) margin,” and particularly with regard to two areas of law: Art. 8 on the right to privacy and Art. 35 on access to the Court. However, as the article further demonstrates, this increase in subsidiarity is very uneven across the member states. The old Western member states generally benefit far more from these new directions in the ECtHR’s jurisprudence. But contrary to popular belief, vocal critiques of the system are not given more deference according to this analysis. A final more general conclusion follows from these findings, namely that the ECtHR is receptive to political signals and does not operate in isolation from politics as it is often claimed. Although currently merely soft law documents, the Brighton Declaration and associated Protocols have triggered change at the Court in the direction set out in these documents and events. This has theoretical implications for the understanding of the evolution of international courts.

* A recent conference in Strasbourg entitled “Promoting dialogue between the European Court of Human Rights and the media freedom community. Freedom of expression and the role and case law of the European Court of Human Rights: developments and challenges" has led to an E-Book by the European Centre for Press and Media Freedom. The online publication deals with : (1) defamation, privacy and the processing of personal data, (2) investigative journalism in relation to news gathering, access to official documents and the importance of the protection of sources and whistle-blowers, as well as (3) the right to protest and the role of the media during protests.

* A short reflection on a recent conference in the UK over at the UK Human rights Blog, written by Luxu Moxham, entitled 'Implementation of ECHR judgments – have we reached a crisis point?'.

* Earlier in the year, the Council of Europe itself put online an abridged report entitled Evaluation of the effectiveness of the Council of Europe support to the implementation of the ECHR at national level. it focuses on the problems after a judgment has been issued by the European Court of Human Rights and includes a number of recommendations for improvement. 

* And finally, a short report by Anne-Katrin Speck of the conference on Principled Resistance and the ECHR, which took place early June at the University of Konstanz, where I participated in the final round table.

Friday, 30 June 2017

New ECHR Readings

Please find below a number of ECHR-related academic publications of the past few months:

The first issue of 2017 (Vol. 13, No. 1) of the Utrecht Law Review includes:

* Sietske Dijkstra, 'The Freedom of the Judge to Express his Personal Opinions and Convictions under the ECHR', pp.1–17:

The freedom of the judge to express his personal opinions and convictions is limited by his special position. The question arises where these limits lie: what are the possibilities for judges to express their personal views on religious, political or other subjects, whether it is through speech, writing, wearing religious symbols or membership of an association or church? In this article the limits of the freedom of the judge will be studied as they appear from the case law of the ECtHR. Two types of cases from this case law are relevant for this subject: cases based on complaints from judges about a violation of their rights under Article 9-11 ECHR and cases based on complaints from litigants and suspects about a violation of their right to a fair trial under Article 6(1) ECHR. The question is asked how the limits of judicial freedom are defined in the case law of the ECtHR and where these limits lie.

* David Kosař, 'Nudging Domestic Judicial Reforms from Strasbourg: How the European Court of Human Rights shapes domestic judicial design', pp.112–123:

This article discusses to what extent and how the European Court of Human Rights (ECtHR) has initiated and engaged in domestic judicial reforms. It shows that the judgments of the Strasbourg Court, rather than having effects only with respect to the individual whose rights have been violated, have much deeper structural effects in the design and operation of domestic judicial systems. This article argues that this phenomenon goes rather unnoticed, but it has deep implications for both the developing and developed European democracies. To demonstrate this phenomenon, this article assesses the impact of the ECtHR on three judicial design issues. First, it illustrates how the ECtHR has challenged the role of the advocates general. Second, it explains how the ECtHR has gradually curbed the jurisdiction of military courts both over civilians and over military officers, which has brought these courts to the brink of their abolition. Finally, it outlines how the ECtHR in its judgments regarding the disciplining of judges empowers the judiciary at the expense of other political institutions within the State. Based on the analysis of these three judicial design issues, we conclude that the Strasbourg Court is affecting the internal architecture of domestic judiciaries as it gradually endorses the unification of court administration and changes the power structures within the judiciary.

The March issue (Vol. 17, No. 1, 2017) of the Human Rights Law Review includes:

* Thomas Voland and Britta Schiebel, 'Advisory Opinions of the European Court of Human Rights: Unbalancing the System of Human Rights Protection in Europe?', pp. 73-95:

Protocol 16 to the European Convention on Human Rights (ECHR) introduces a mechanism enabling certain domestic courts to seek advisory opinions from the European Court of Human Rights (ECtHR) as part of broader reform efforts to enhance the efficiency and legitimacy of the Court. This article provides an overview of the functioning of the Court’s new advisory capacity, explains the context of the initiative and gives examples of its intended implementation at the national level. While the new tool was primarily designed to enhance the relationship between national courts and the ECtHR, the recent opinion of the Court of Justice of the European Union (CJEU) on the accession of the European Union (EU) to the ECHR has revealed a rather unexpected dimension of the mechanism contained in Protocol 16. The CJEU declared the Draft Accession Agreement unlawful, inter alia, due to an alleged threat posed by the advisory mechanism to the autonomy of EU law and its possible interference with the preliminary ruling procedure before the CJEU. In this article, the merits of these arguments are also examined.

* Lize R. Glas, 'The European Court of Human Rights’ Use of Non-Binding and Standard-Setting Council of Europe Documents', pp. 97-125:

In many judgments, the European Court of Human Rights lists relevant international materials and, in some of those judgments, it uses these documents when determining whether the European Convention on Human Rights has been violated. These materials are often non-binding and standard-setting documents that originate in the Council of Europe (CoE), the Court’s organizational framework. This article analyses the Court’s practice of using such documents, based on a sample of 795 judgments. The analysis serves to provide an answer to the questions of how and why the Court refers to and relies on these documents. More specifically, the article describes the number of judgments and the importance of the judgments in which the Court cites a CoE document, as well as the type of organs and the different documents cited. The analysis continues with a description of the part in which the Court’s determination on the question of a violation the CoE documents appear and also addresses the purposes for which the Court seems to use the materials. Lastly, insight is provided into the relevance of the documents to the Court’s reasoning and explanations are given for why the Court does, or does not, follow the standards formulated in a document.

* Kai Ambos, 'The Crime of Genocide and the Principle of Legality under Article 7 of the European Convention on Human Rights', pp. 175-186:

In Vasiliauskas v Lithuania the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a fundamental judgment concerning the general question as to how new regimes should deal with grave human rights violations which occurred under the former regime. The question was further aggravated by the fact that the former regime was the then Soviet occupation force in the territory of the Baltic states and the new regime (Lithuania) came into existence with the dissolution of the former Soviet Union as one of the many consequence of the fall of the Berlin Wall. The applicant worked for the Soviet secret service at the time and killed, in 1953, two members of the Lithuanian partisan movement. He was convicted of genocide by the Lithuanian domestic courts. The Grand Chamber held, with a slim majority of nine to eight votes, that this conviction violated Article 7 of the European Convention on Human Rights (ECHR). After a summary of the main arguments of the majority and minority opinions in Section 2, the article will, in Section 3, consider five problems: the peculiar structure of the genocide offence, the concepts of ‘foreseeability’ and ‘genocide’, the concepts of ‘national groups’ and ‘armed resistance movement’, the role of judicial interpretation and last, but not least, the general role of international courts in the treatment of such sensitive events of the past.

And the June issue of the same Review (No. 2) includes:

* Başak Bağlayan and Johannes Hendrik Fahner, '‘One Can Always Do Better’1: The Referral Procedure before the Grand Chamber of the European Court of Human Rights', pp. 339-363:

The referral procedure provided for by Article 43 of the European Convention on Human Rights allows a rehearing of cases by the Grand Chamber of the European Court of Human Rights after delivery of a Chamber judgment. The widely criticized procedure was adopted as a political compromise between the proponents of two-tier review and those who considered that a single instance review should suffice. This article discusses how the Court has conducted its review under Article 43. It analyses the judgments issued upon referral in order to identify whether the Court understands the referral procedure as a de novo consideration of the entire case or as a more restricted appeal against the Chamber judgment. It is concluded that the Grand Chamber’s jurisprudence combines elements of both approaches, which leaves the function of Article 43 unclear.

And then, finally, a number of other readings:

* Oddný Mjöll Arnardóttir. 'The “procedural turn” under the European Convention on Human Rights and presumptions of Convention compliance', International Journal of Constitutional Law, vol. 15, no. 1 (2017) pp. 9-35:

The literature on the “procedural turn” in the case-law of the European Court of Human Rights (ECtHR) is divided on the question of whether positive inferences from due procedural diligence at the national level can go so far as to bar the Court’s own normative engagement on the issue in question (complete deference). After giving a conceptual clarification of the procedural turn and the margin of appreciation doctrine, this article reports a case law analysis which establishes that while the ECtHR increasingly relies on the quality of domestic procedures under the systemic element of the margin of appreciation, this usually only leads to partial deference as the Court also engages in its own normative assessment on the merits of the case. Interestingly, however, the case-law analysis also brings three distinct lines of case law to light (the “fourth instance doctrine”, legitimate aims behind limitations on rights, and balancing rights) where the systemic margin of appreciation has been relied upon to create rebuttable presumptions of European Convention on Human Rights compliance, which can effectuate complete deference on certain elements of assessment. The article concludes with some critical comments on complete deference on the proportionality assessments traditionally considered to be at the heart of the Court’s own judicial task.

* Anne Wijffelman, 'Child marriage and family reunification. An analysis under the European Convention on Human Rights of the Dutch Forced Marriage Prevention Act', Netherlands Quarterly of Human Rights, vol. 35, No. 2 (2017):

The Dutch Forced Marriage Prevention Act aims to prevent family reunification of so-called child brides with their husbands in the territory of the Netherlands by no longer recognizing child marriages concluded abroad as legal marriages. Although it can be argued that the Netherlands has an obligation not to recognise a child marriage concluded abroad, it is disputable whether the Forced Marriage Prevention Act is in line with other human rights obligations. This article analyses whether the rights of child brides are violated under Articles 8 and 3 of the European Convention on Human Rights, if their family reunification application is denied. Although the minor spouse is most likely residing outside the territory of the Netherlands, a family reunification procedure brings her nevertheless within its jurisdiction, and as such within the sphere of the European Convention on Human Rights.

Friday, 16 June 2017

PACE Report on Delays in Implementation of Judgments

Last month, the Legal Affairs Committee of Parliamentary Assembly of the Council of Europe (PACE) discussed the newest report on implementation of the European Court's judgments. This 9th report was made by Pierre-Yves Le Borgn’ and, as always, is a valuable resource to get insight into the many problems in giving follow-up to the judgments of the Court. The number of judgments pending at the Committee of Ministers has now almost reached 10,000. More worrying than that is that there is an increase in the number of leading cases, in which states are really required to do something new to remedy a situation and usually change their laws or policies structurally, that have not yet been implemented for more than five years. Here, it clearly is not only about lack of capacity within national jurisdictions or slow procedures of amending legislation, but also about political unwillingness. As the Committee noted, it does not stop there. There also are "attempts made to undermine the Court’s authority and the Convention-based human rights protection system."

As in earlier years, a relatively small number of states causes most problems in this respect. This time - and close observers may not be surprised - Italy, the Russian Federation, Turkey, Ukraine, Romania, Hungary, Greece, Bulgaria, the Republic of Moldova and Poland are the main problematic countries. 

The appendix to the report give a detailed overview of where matters stand in relation to a number of leading cases in a large number of countries.

Friday, 9 June 2017

New System for Single-Judge Decisions

The European Court of Human Rights announced last week that it has adopted, as of this month, a new procedure which allows more detailed reasoning to be given in single-judge decisions. Ever since the single-judge procedure was introduced through Protocol 14 in 2010, the Court had been applying a very summary procedure to deal with the large backlog of tens of thousands of cases. Both by practitioners and academics this state of affairs, born out of necessity, has often been criticised as it gave no clarity or reasoning to people whose applications were rejected by single-judge decisions.

Two years ago, the State Parties at the High Level Conference in Brussels on the Convention, welcomed the Court's intention "to  provide brief reasons for the inadmissibility decisions of a single judge, and invites it to do so as from January 2016." It has taken a bit longer, but now that - in the Court's own words - "the backlog has been eliminated", more detailed reasoning will be given, but still not in all cases. This is how the procedure will unfold:

"Instead of a decision-letter, applicants will receive a decision of the Court sitting in single judge formation in one of the Court’s official languages and signed by a single judge, accompanied by a letter in the relevant national language. The decision will include, in many cases, reference to specific grounds of inadmissibility. However, the Court will still issue global rejections in some cases, for example, where applications contain numerous ill-founded, misconceived or vexatious complaints."

This still may not satisfy everyone, but it at least come along some of the road. As the court indicated in its press release, it has to "strike a balance between addressing a legitimate concern about the lack of individualised reasoning and maintaining an efficient process for handling inadmissible cases so as not to divert too many resources from examining potentially well-founded cases." The very fact that this is now possible, should be a good sign.

Friday, 19 May 2017

New ECHR Readings

Please find a number of new ECHR readings from journals and blogs below: 

* Vassilis P. Tzevelekos, 'The Al-Dulimi Case before the Grand Chamber of the European Court of Human Rights: Business as usual? Test of Equivalent Protection, (Constitutional) Hierarchy and Systemic Integration', Questions of International Law, no. 38 (2017).

* Onder Bakircioglu and Brice Dickson, 'The European Convention in Conflicted Societies: The Experience of Northern Ireland and Turkey', International and Comparative Law Quarterly, vol. 66, issue 2 (2017).

The newest volume of the Hungarian Yearbook of International Law and European Law (2016) includes:

* Veronika Szeghalmi, 'Private Messages at Work – Strasbourg Court of Human Right’s Judgement in Bărbulescu v. Romania Case'. 
* Zoltán Tallódi, The Question of Prison Overcrowding as Reflected in the Decisions of the European Court of Human Rights''.
* János Tamás Papp, 'Liability for Third-Party Comments before the European Court of Human Rights – Comparing the Estonian Delfi and the Hungarian Index-MTE Decisions'.

And over on EJILTalk! the following recent postsa relate to the ECHR and the Court's Judgments:

* Alice Donald, ‘Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?’.
* Vladislava Stoyanova, ‘Irregular Migrants and the Prohibition of Slavery, Servitude, Forced Labour & Human Trafficking under Article 4 of the ECHR’.
* Marko Milanovic, ‘Strasbourg Judgment on the Beslan Hostage Crisis’. (on the same judgment, see laso Ed Bates' piece here).

Friday, 12 May 2017

Book on ECHR History

Marco Duranti, a historian based at the University of Sydney, has written an important new study about the origins of the European Convention of Human Rights. The book, published by Oxford University Press, is entitled 'The Conservative Human Rights Revolution -European Identity, Transnational Politics, and the Origins of the European Convention'. Based on extensive archival research, it proposes that - contrary to the image, in the eyes of many, of the Court in the past decades as a progressive developer of human rights - the original Convention negotiations were dominated by political conservatives, who saw the Strasbourg system as a safeguard for stability and containment rather than as a tool for change. This is the abstract:

'The Conservative Human Rights Revolution radically reinterprets the origins of the European human rights system, arguing that its conservative inventors envisioned the European Convention on Human Rights (ECHR) not only as an instrument to contain communism and fascism in continental Europe, but also to allow them to pursue a controversial political agenda at home and abroad. Just as the Supreme Court of the United States had sought to overturn Franklin Roosevelt's New Deal, a European Court of Human Rights was meant to constrain the ability of democratically elected governments to implement left-wing policies that conservatives believed violated their basic liberties, above all in Britain and France.

Human rights were also evoked in the service of reviving a romantic Christian vision of European identity, one that contrasted sharply with the modernizing projects of technocrats such as Jean Monnet. Rather than follow the model of the United Nations, conservatives such as Winston Churchill grounded their appeals for new human rights safeguards in an older understanding of European civilization. All told, these efforts served as a basis for reconciliation between Germany and the rest of Europe, while justifying the exclusion of communists and colonized peoples from the ambit of European human rights law.

Marco Duranti illuminates the history of internationalism and international law — from the peace conferences and world's fairs of the early twentieth century to the grand pan-European congresses of the postwar period — and elucidates Churchill's Europeanism, as well as his critical contribution to the genesis of the ECHR. Drawing on previously unpublished material from twenty archives in six countries, The Conservative Human Rights Revolution revisits the ethical foundations of European integration after WWII and offers a new perspective on the crisis in which the European Union finds itself today.'

Friday, 5 May 2017

Event on Implementation of ECtHR Judgments in the UK

On 15 May, the Bingham Centre for the Rule of Law and Leicester Law School are organizing an event in London, entitled 'Implementation of the European Court of Human Rights: Opportunities and Challenges for he Rule of Law'. The event will focus on the United Kingdom's implementation record and more broadly on the impact of Strasbourg judgments in the UK. According to the organizers, the speakers will "consider the UK government's recent report 'Responding to Human Rights Judgments' which outlines its position on the implementation of the Court's judgments and responds to recommendations made by the Joint Committee on Human Rights in its 2015 scrutiny report 'Human Rights Judgments'. We will also hear a UK government perspective "from the inside" on the Committee of Ministers and its work supervising the execution of judgments. Speakers will then consider the wider picture of implementation across the member states and will reflect on the process for the execution of judgments and the role of the Committee of Ministers in this regard."

The event will be held at the British Institute of International and Comparative Law in the early evening (at 17h30). Speakers will include Ed Bates, Nuala Mole and Philip Leach. For more information, see here.

Tuesday, 2 May 2017

Book on Procedural Review in European Fundamental Rights Cases

My colleague, SIM fellow and Utrecht University, Professor Janneke Gerards and Eva Brems of Ghent University have published a co-edited volume entitled 'Procedural Review in European Fundamental Rights Cases' with Cambridge University Press. With a wide range of chapters, it unites and compares the approaches of the European Court of Human Rights with those of other bodies. This is the abstract: 

'Traditionally, courts adjudicate fundamental rights cases by applying substantive tests of reasonableness or proportionality. Increasingly, however, European courts are also expressly taking account of the quality of the procedure that has led up to a fundamental rights interference. Yet this procedural review is far from uncontroversial. There still is a lack of clarity as to what 'procedural review' really means, what its potential for judicial decision-making is, how it relates and should relate to substantive review, and what its limitations are. Featuring contributions from experts in the field, this book is the first in-depth study into procedural review, considering the theoretical and conceptual issues at play, as well as the applicability of procedural review in different legal systems. It will therefore be of great importance to scholars and practitioners interested in fundamental rights adjudication in Europe, judicial reasoning and procedural justice'

Congratulations, Janneke and Eva!

Tuesday, 25 April 2017

Conference on Derogations from the ECHR and Situations of Emergency

On 4 May, the Institute of International Law and International Relations of the University of Graz is organising a confernece entitled "Derogation from the European Convention on Human Rights under Contemporary Situations of Emergency". The conference will be held at the Faculty of Law. Beyond a general European perspective, cases studies of four countries are included: the United Kingdom, Ukraine, France and Turkey.

The full conference programme can be found here. To register, please send a message to: bettina.friedl (at) uni-graz.at 

Wednesday, 19 April 2017

My Article on Influence of ECHR Anti-Torture Jurisprudence on the UN Human Rights Committee

I have just posted on SSRN my new paper on jurisprudential influences of Strasbourg case-law on the work of the United Nations Human Rights Committee. It is entitled 'Echoes of Strasbourg in Geneva. The Influence of ECHR Anti-Torture Jurisprudence on the United Nations Human Rights Committee'. This is the abstract: 

"In this article the influence of the European Court of Human Rights’ case-law on the United Nations Human Rights Committee will be analysed. This particular choice of supervisory bodies enables us to trace such potential influence adequately since both the Court and the Committee supervise treaties which mainly concern civil and political rights: the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Both are legally binding elaborations of the Universal Declaration of Human Rights. Many of the rights in the two treaties are, as a consequence, formulated in a similar way. This facilitates a systematic comparison between the case-law of the two supervisory institutions. To map the possible influence of the Court’s jurisprudence on the Committee’s work as precisely and concretely as possible, I will focus on the prohibition of torture and inhuman and degrading treatment."