Tuesday, 22 December 2009

Last Post of the Year: Fox Hunt, Protocol 14, and More

Dear readers, at the end of this year a final post with a miscellany of issues. First, the Court's site offers a range of new features to make its case law more easily accessible. An important innovation is the translation of key judgments in over ten languages (to be found through HUDOC) More information on this can be found here. That same page also contains a host of links to online translated collections of case-law in many more languages by non-ECHR sites. Another great innovation is that it is now finally possible to search on HUDOC for judgments by the Grand Chamber, ordinary chambers and committees. Finally, a list of keywords to search HUDOC more effectively is upcoming. And for another way of keeping updated, several RSS feeds have been added here. All of this will hopefully help the often mentioned implementation of the ECHR at the national level.

Secondly, under the new Procedure of Protocol 14-Bis, the first judgments have been adopted by three-judge committees. This should pave the way for a more efficient handling of cases. Whereas until now, such committees could only declare cases inadmissible, they can now also issue judgments on the merits in cases dealing with issues on which there is well-estalbished case-law. In the first place, one can think here of repetitive judgments. the first of these judgments, Kressin v. Germany (Appl.no. 21061/06) and Jesse v. Germany (Appl.no. 10053/08) will be published online today and deal, not surprisingly perhaps, with complaints on the excessive length of judicial proceedings. The entry into force of that other Protocol, 14, might be very near, as the Council of Europe reports that the Russian Duma has agreed to resume the procedure for Protocol 14 ratification. See also the report of Julien Frisch, over at Watching Europe.

Thirdly, the newest issue of the Göttingen Journal of International Law (vol. 1, No. 3) has just been published and contains amongst others 'When Soering Went to IraqŠ: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights Al-Saadoon Case', by Cornelia Janik and Thomas Kleinlein. This is the abstract:

In its admissibility decision in the Al-Saadoon case the ECtHR held that the United Kingdom had jurisdiction over the applicants, who had been arrested by British forces and kept in a British-run military prison in Iraq. Just before the respective mandate of the Security Council expired on 31 December 2008, the applicants were transferred to Iraqi custody at Iraqi request and thereby exposed to the risk of an unfair trial followed by capital punishment. The authors trace back the ECtHR's case law concerning the extraterritorial application of the Convention and establish patterns how the ECtHR and the UK Courts did cope in the past with international law norms potentially competing with the Convention.
Finally, for a case that could qualify as one of the funniest of the year, as a kind of Christmas treat from Strasbourg, I can recommend the admissibility decision in Friend and Countryside Alliance and others (Appl.nos 16072/06 and 27809/08) of last week. In this decision, the Court dismissed the complaints of a group of hunters and others about the British ban on hunting with hounds (on foxes and other animals). The Court held in this decision that a person's hunting grounds do not fall within the concept of home nor can the huntng community be seen as an ethnic community. The Court was not of the view that (para. 44) "that hunting amounts to a particular lifestyle which is so inextricably linked to the identity of those who practise it that to impose a ban on hunting would be to jeopardise the very essence of their identity."

I wish all of you a very good holiday season and an excellent 2010, with hopefully an improved human rights situation in Europe and around the world!

Monday, 21 December 2009

More on Interlaken

The upcoming conference in Interlaken next year on the reform of the supervision of the ECHR is already yielding a range of preparatory documents. The Commissioner for Human Rights of the Council of Europe has published a memorandum in which he gives his views. He points amongst others to the need to strengthen national supervision of human rights and specifically national monitoring by e.g. national human rights institutions. Not surprisingly the Commissioner also calls for more staff for his own office in order to make his own contribution to the ECHR supervisory system. In the past few years, the budget of the Council of Europe's institutions (apart from the Court) has indeed stagnated. Now that both attention and emphasis are being put more heavily on implementation of the Court's judgments, the enabling environment - as I would call it - of the Convention indeed needs reinforcement.

The Steering Committee for Human Rights (CDDH) in which all state parties are represented has now also made public its 'Opinion on the issues to be covered at the high-level Conference on the future of the European Court of Human Rights'. This document is probably the best indication of the issues to be addressed at Interlaken and also gives an insight in current thinking on the part of the states involved. It will, by the way, be the only intergovernmental contribution, to this conference, it is expected. Just to highlight a few points: the states seem to remain committed to the individual right of application. But further on in the document, an important proviso is added:

In the longer term, there lies the possibility that the Court might one day develop to have some degree of power to choose from amongst the applications it receives those that would receive judicial determination. The time is not yet ripe, however, to make specific proposals to this end.
It is also suggested that a system of fees might be introduced to reduce the number of clearly inadmissible applications. In this same context, the document mentions several options to make the filtering of applications more effective, such as:

(i) a new, separate body of judges within the Court, responsible for filtering;
(ii) additional judges appointed to the existing bench;
(iii) the discharge of certain judicial powers by members of the Registry;
(iv) at least in the short-term, until other solutions can be implemented, a rotating pool of judges taken from the existing bench.
The CDDH also calls upon the Court itself to be clear and coherent and "to take full accoonut of its subsidiary role" - is that a plea to revive a strong margin of appreciation application and in general to leave more to the state parties? One might question whether this way of handing responsibility back to national authorities will automatically strengthen human rights protection. In that sense, supervising human rights is not the same as raising children by giving them increased responsibilities. Caution is called for here.

The Secretary General of the Council of Europe, Thorbjørn Jagland, has also drafted his contribution (dated 18 December) to Interlaken, which will soon be online on the Council of Europe's website.

Finally, on the NGO front, action is also being undertaken to make sure that the reforms will truly happen and more specifically will really strengthen the system of supervision. As I reported last week, there is a joint NGO statement. The drafting NGOs of this document are now calling for other NGOs, in as many ECHR state parties as possible, to endorse this document to make civil society's voice resound in the hills around Interlaken. NGOs who want to endorse the document or who have further questions about it, can contact the main drafters at Europeigoteam at amnesty.org .

Friday, 18 December 2009

ECHR Articles in NJECL

The first issue of the 'New Journal of European Criminal Law' (a continuation of the Journal of European Criminal Law) has just been published and contains various ECHR-related articles:

* Editorial: Taxquet v Belgium, R v Ponting, Trials by Jury and a Homage to Neil MacCormick, by Scott Crosby;
* Survey of Instances of Non-Compliance with Interim Measures Adopted under Rule 39 of the Rules of Court, by the Registry of the European Court of Human Rights;
* Decisions of the European Court of Human Rights Affecting Criminal Law/Criminal Procedure, by Richard Lang.

The entire issue can be accessed electronically here.

Thursday, 17 December 2009

Conference on Application of ECHR and EC Law

On the 15th and 16th of January the Sant’Anna School of Advanced Studies in Pisa (Scuola Superiore di Studi Universitari e Perfezionamento Sant’Anna di Pisa) is organising a conference entitled 'National Judges and Supranational Laws: On the Effective Application of the EC Law and the ECHR'. This is the provisional programme:

January 15th 2010
9.00 - 9.30 Opening remarks:
Giuseppe Franco Ferrari (President of the Italian Association of European and
Comparative Public Law, DPCE)
Paolo Carrozza (STALS Editor)
Giuseppe Martinico and Oreste Pollicino (Convenors)
9.30 - 10.40 I panel
Chair: Elettra Stradella
9.30 – 9.50: Michal Bobek and David Kosa (Report on Czech Republic and Slovakia)
9.50 – 10.05: Matej Avbelj (Report on Slovenia)
10.05 - 10.25: Philipp Cede (Report on Austria and Germania)
10.25 – 10.40: Discussion
10.40 - 11.00

11.00 - 12.00 Break

II panel
Chair: Andras Sajo
11.00 - 11.15 : Maria Fartunova (Report on Bulgaria)
11.15 - 11.30: Pal Sonnevend (Report on Hungary)
11.30 - 11.45: Krystyna Kowalik (Report on Polonia)
11.45 – 12.00: Discussion

12.00 - 12.15 Break

12.15 – 13.35 III panel
Chair: Hjalte Rasmussen
12.15 - 12.30: Ioana Raducu (Report on Romania)
12.30 - 12.55: Irmantas Jarukaitis (Report on Baltic States)
12.55 - 13.20: Carl Lebeck (Report on Scandinavian States)
13.20 - 13.35: Discussion

13.35 - 15.00 Lunch

15.00 – 16.25 IV panel
Chair: Takis Tridimas
15.00 – 15.20: Cian Murphy (Report on UK and Ireland)
15.20 - 15.35: Nikolas Kyriakou (Report on Cyprus)
15.35 - 15.55: Elaine Mak (Report on the Netherlands and Luxembourg)
15.55 - 16.10: Discussion

16.10 - 16.25 Break

16.25 – 17.15 V panel
Chair: Antonio Lazari
16.25 - 16.45: Anne Levade (Report on France and Belgium)
16.45 - 17.00: Giuseppe Martinico and Oreste Pollicino (Report on Italy)
17.00 - 17.15: Discussion

17.15 - 17.30 Break

17.30 – 18.30 VI panel
Chair: Robert Harmsen
17.30 - 17.45: Francisco Pereira Coutinho (Report on Portugal)
17.45 - 18.00: Aida Torres Perez (Report on Spain)
18.00 - 18.15: Vassilis P. Tzevelekos- Stella – Eirini Vetsika (Report on Greece)
18.15 - 18.30: Discussion

20.00 Drink and dinner

January 16th 2010

9.00 - 11.00 VII Panel
Chair: Oreste Pollicino
Andras Sajo, “The interaction of domestic value judgments, traditions and ECHR human rights concepts”
Takis Tridimas, “Constitutional pluralism in EU and ECHR law”

11.00 - 11.15 Break

11.15 - 13.15 VIII panel
Chair: Giuseppe Martinico
Robert Harmsen, “Transformation of ECHR legal order and the post-enlargement challenges for the European Court of Human Rights”
Hjalte Rasmussen, “The Taciturn Court. About the European Court’s Complete Non-transparency of Willensbildung, its Poor Reasonings and Competence Transgressions”

13.15 - 13.30 Concluding Remarks
Giuseppe Martinico
Oreste Pollicino

For further information you can contact Giuseppe Martinico (martinico at sssup.it). The programme in pdf-format can be found here.

Tuesday, 15 December 2009

Joint NGO Statement on the Interlaken Process

A number of leading human rights NGOs have just issued a joint statement on the Interlaken Process, on which I reported earlier here. The statement is entitled 'Human rights in Europe: Decision time on the European Court of Human Rights'. This is the full text, which can also be found in pdf-version here:

The system for the protection of human rights in Europe is under scrutiny. States are examining the European Court of Human Rights. At a Conference in February 2010 they will take decisions which could bring welcome reform to relieve the Court’s backlog of cases. Conversely, the decisions taken could undermine a body that has provided redress for the victims of human rights violations in Europe for 50 years.

People in Europe (future applicants to the Court) have an interest at least equal to that of the states in ensuring the long-term effectiveness of the Court. States should therefore inform the public about the debates and consult civil society in the lead-up to the Conference and throughout the reform process which follows it.

47 states in Europe have agreed to be bound by the European Convention on Human Rights. States’ respect for the Convention rights of some 800 million people is monitored primarily by the European Court of Human Rights, based in Strasbourg. The Court makes binding judgments in cases where individuals claim that their Convention rights have been violated and that the state has not granted redress. The implementation of the Court’s judgments is supervised by the Committee of Ministers, representing all 47 Council of Europe states.


Enhanced respect for human rights by the 47 Council of Europe member states must remain the priority -- in more than 80 per cent of its judgments, the Court has ruled that the European Convention on Human Rights had been violated. If states complied with their clearly established obligations under the Convention, the
number of applications to the Court would be significantly reduced. The Court faces difficult challenges in light of its resources, as a result of the enormous number of individual applications being lodged (nearly 50,000 application forms in 2008), coupled with the backlog of cases pending before it (more than 110,000).

The European Court of Human Rights must be a strong Court, accessible to individuals claiming violations of their Convention rights when they have had no effective redress domestically. It should be a Court which will give a reasoned decision on whether a case is admissible, or a reasoned judgment on the merits of a case, without undue delay. The Court should be given the resources by states to function properly, and not at the expense of other Council of Europe human rights mechanisms.


National Human Rights Protection
States must take concerted action to ensure greater respect for human rights and must provide effective domestic remedies when rights are violated. Better implementation of the Convention at national level would mean greater respect for human rights throughout Europe and would reduce the need for individuals to apply to the Court for redress. Fewer cases would be sent to the Court if states implemented the Court’s judgments by providing effective remedy and reparation and by taking steps aimed at ensuring the violation is not repeated, and if states implemented not only judgments against them, but also standards developed in all relevant judgments against other states. There would also be fewer cases brought about issues on which the Court has already clarified how the Convention should be applied (half of the Court’s judgments in the past 50 years are on “repetitive” cases).

Reform of the Court
Any reforms to the European Court of Human Rights should ensure that:
· the fundamental right of individual petition is preserved and not further curtailed;
· there is an efficient, fair, consistent, transparent and effective screening of applications received, to weed out the very high proportion (around 90 per cent) of applications that are inadmissible under the current criteria;
· judgments are given within a reasonable time, particularly in cases where time is of the essence, or that raise repetitive issues where the Court’s case law is clear and those that arise from systemic problems;
· the Court is given adequate financial and human resources, without adversely impacting the budgets of other Council of Europe human rights mechanisms and bodies;
· solutions to the problems faced by the Court, including the varied reasons for inadmissible applications, are devised on the basis of informed analysis, transparent evaluation of both the root of the problems and recent and future reforms.

The Committee of Ministers
The role of the Committee of Ministers in supervising states’ implementation of the Court’s judgments needs to be strengthened, not weakened. Its methods should be further developed and, when needed, the political pressure of the Committee must be brought to bear. The Department of Execution of Judgments, which assists with this task, urgently needs reinforcement. What is needed is political will. Political will by the 47 Council of Europe states to respect the European Convention on Human Rights, to ensure effective domestic remedies for violations of Convention rights, to
implement and ensure the implementation of the Court’s judgments and to adequately resource the European Court of Human Rights and the Department of Execution of Judgments. We note the recent Opinion by the Committee of Ministers’ Steering Committee for Human Rights, the reflections of the Court’s President and earlier proposals by the Group of Wise Persons and Lord Woolf.

We support proposals:
· to help potential applicants to the Court to be better informed about admissibility criteria;
· aimed at ensuring better implementation of the European Convention on Human Rights by states, such as improving domestic remedies or establishing effective ones where none exist; ensuring translation and dissemination of the Court’s case law and the screening of legislation for compliance with the Convention;
and involvement of both national Parliaments and human rights institutions in this endeavour;
· guaranteeing a high standard of expertise and independence of the Court’s judges, selected in inclusive, comprehensive and transparent processes;
· to address the case backlog effectively through short-term measures;
· to enhance resources and methods related to the Committee of Ministers supervision of implementation of judgments

We oppose proposals:
· that would undermine the accessibility of the Court such as charging applicants fees, or adding new, more restrictive admissibility criteria. Lack of funds should never be an obstacle for bringing an application before the Court;
· that would give the Court discretion to decide on which admissible cases it renders judgment;
· that would lessen the powers of the Committee of Ministers and the Department of Execution of Judgments to supervise the implementation of Court judgments.

Further reflection is needed to address concerns about proposals:
· to permit national courts to request Advisory Opinions from the European Court of Human Rights;
· to simplify the procedures for amending Convention provisions relating to the Court’s operating rules and procedures.

Friday, 11 December 2009

Russia Urged to Implement Pilot Judgment

Last week, the Committee of Ministers of the Council of Europe urged the Russian Federation to adopt reforms to fully implement the pilot judgment in the case of Burdov (No. 2) v. Russia, on which I have reported earlier here. Although the Committee commends Russia for its constructive approach in addressing the issue of failed enforcement of domestic court judgments - the subject-matter of the Burdov case - it also criticizes Russia for failing to implement reforms before the deadline set by the Court (4 November 2009). For the full press release, click here. The interim resolution itself can be found here.

Wednesday, 9 December 2009

Roma Marriage Judgment

This week, the Court gave an important judgment on the treatment of minorities by ECHR state parties. In the case of Munoz Diaz v. Spain (Appl.no. 49151/07) the Court held that Article 14 (prohibition of discrimination) in conjunction with Article 1 of Protocol No. 1 (protection of property) had been violated. In the 1970s she married according to Roma rites, but the marriage was not registered in the Civil Register. When her husband died in 2000, she applied for a survivor's pension, but was refused on the ground that she had not been married according to the law. She complained in Strasbourg that this was a form of discrimination of the Roma marriage. The Court took into account that the authorities had always recognised Munoz Díaz, her spouse, and their children as a family. The Court did not only take into acocunt her good faith in believing previosuly that the authorities recgonised her marriage, but it also emphasized that (paras. 56-57):

The importance of the beliefs that the applicant derives from belonging to the Roma community – a community which has its own values that are well established and deeply rooted in Spanish society. The Court observes, in the present case, that when the applicant got married in 1971 according to Roma rites and traditions, it was not possible in Spain, except by making a prior declaration of apostasy, to be married otherwise than in accordance with the canon-law rites of the Catholic Church. The Court takes the view that the applicant could not have been required, without infringing her right to religious freedom, to marry legally, that is to say under canon law, in 1971, when she expressed her consent to marry according to Roma rites.
And then follow some very telling considerations (paras. 59-60):

The Court takes the view that the force of the collective beliefs of a community that is well-defined culturally cannot be ignored. (my emphasis)

The Court observes in this connection that there is an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see ... in particular the Framework Convention for the Protection of National Minorities), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community
The reference to an emerging consensus is taken from the 2001 Chapman judgment, but the Court omits - and I think this is remarkable - the consideration which followed in the Chapman case (para. 94): "However, the Court is not persuaded that the consensus is sufficiently concrete for it to derive any guidance as to the conduct or standards which Contracting States consider desirable in any particular situation. The framework convention, for example, sets out general principles and goals but the signatory States were unable to agree on means of implementation." By contrast, in Munoz Diaz the Court appearantly takes the position that such consensus on minority rights as reflected in the Framework Convention is sufficiently clear to derive guidance from. It notes (para. 64) that "under the Framework Convention for the Protection of National Minorities, the States Parties to the Convention are required to take due account of the specific conditions of persons belonging to national minorities." This seems a stronger position than in Chapman in which the Court held that belonging to a minority (para. 96) "may have an incidence on the manner" on the way in which laws are implemented. Should we conclude that the Court is prepared to take more account of the culture of well-estabblished minorities? After all, it emphasizes in Munoz Díaz that the Roma have a culture that is "well established and deeply rooted in Spanish society." It may be too early too say, but Munoz-Díaz may become the first in a line of cases.

One judge, Myjer, dissented, and it is very worthwhile to read his dissent which does not go so much into the question of specific Roma culture, but more into questions of deviation from earlier case-law on marriage and into whether the Court's line of reasoning was necessary in the first place.

Tuesday, 8 December 2009

Articles on ECHR

The Netherlands Institute of Human Rights (SIM), where I am based, compiles handy regular overviews of human rights articles. Let me highlight those which cover ECHR-related issues here:

* G. Sumner, 'We'll sometimes have Strasbourg: privileged status of community law before the European Court of Human Rights', Irish student law review, vol. 16(2008) pp. 127-170.

*E. Yilmaz, 'Domestic implementation of the judgments of the European Court of Human Rights at the national level: Turkey', Ankara bar review, vol. 1, no. 2(2008) pp. 85-91.

* P. Langford, 'Extradition and fundamental rights: the perspective of the European Court of Human Rights', International journal of human rights, vol. 13, no. 4 (2009) pp. 512-529.

* L. Hart, 'Individual adoption by non-heterosexuals and the order of family life in the European Court of Human Rights', Journal of law and society, vol. 36, no. 4 (2009), pp. 536-557.

* T. Lock, 'The ECJ and the ECtHR: the future relationship between the two European courts', Law and practice of international courts and tribunals, vol. 8, no. 3 (2009) pp. 375-398.

* N. Bamforth, 'Prohibited grounds of discrimination under EU law and the European Convention on Human Rights: problems of contrast and overlap, Cambridge yearbook of European legal studies, vol. 9 (2006/07) pp. 1-42.

* F. Tulkens, 'The European Convention on Human Rights and church-state relations: pluralism vs. pluralism', Cardozo law review, vol. 30, no. 6 (2008/09) pp. 2575-2592.

* K. Boyle, 'The European Experience: The European Convention on Human Rights, Victoria University of Wellington law review, vol. 40, no. 1 (2009) pp. 167-176.

Friday, 4 December 2009

Freedom of Expression for Historians

Coming to terms with its past is a challenge for many societies. The role of a former Hungarian Prime minister, Pál Teleki, in anti-Jewish policies before and during WW II, is at the core of a judgment by the Court this week: Karsai v. Hungary (Appl.no. 5380/07). The applicant is a historian who participated in a public debate on Teleki's role, in relation to a cotnroversy on the possiblity of raising a statue for Teleki a few years ago. In a weekly newspaper, Karsai wrote on the ill-informed apology of Teleki by a number of people, which he labelled as 'careful Jew-bashing'. One of the persons he reffered to was an amateur historian, B.T., who subsequently sued him for defamation. Karsai was ordered to pay the legal costs of the ensuing proceedings and to arrange the publication of a rectification.

Taking his case to Strasbourg, Karsai claimed that this obligation violted his freedom of expression and that the sanction itself affected his credibility as a historian. The Court agreed, holding unanimously that Article 10 ECHR had been violated. Most of the Court's reasoning is very familiar: it considered the debate of utmost public interest (leading to a higher protection for Karsai's expressions). In addition, it held that B.T. had exposed himself to criticism by also openly participating in the public debate on the issue of Teleki. In this case Karsai's criticism had been indirect, but in the Court's view even harsh criticism would have been protected by Article 10 ECHR.

One element is of note for those who follow every step of the Court's freedom of expression case law. The Court has always distinguished between statements of fact - which are susceptible to proof - and to value-judgments which are not. In this case the domestic Courts had labelled Karsai's writings as factual statements, but the European Court disagreed. In order to do so it had to step away even further from what originally seemed to be intended as a clear typology, but which has become a bit blurred over the years. In this case, the Court introduced the term "value-laden" statements of fact, which seems to be somewhere in the grey zone between the two extremes. Does this mean that the Court has now truly chosen for a kind of gliding scale, in which the less factual a statement is, the less proof is needed? If so, then domestic courts might have a hard time in applying this approach consistently and convincingly in new cases coming before them.

Finally, having studied history myself, I was happy to read that the Court now explicitly held the following (para. 36): "the measure imposed on the applicant, namely, the duty to retract in a matter which affects his professional credibility as a historian, is capable of producing a chilling effect."

Tuesday, 1 December 2009

My Own Article on Pilot Judgments

Dear readers, allow me to make a reference to one of my own upcoming articles. Later this month the main Greek Law Journal Nomiko Vima will publish a special issue on the 50th anniversary of European Court of Human Rights. It will include my article 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' which I have posted on SSRN. I humbly hope you will enjoy the read. This is the abstract:

The fiftieth anniversary of the European Court of Human Rights this year is an occasion for both celebration and apprehension. From a timid beginning the Court has grown into a full-time institution successfully dealing with thousands of cases each year. Its case law is generally perceived to be among the most developed and extensive of all international human rights institutions and most of its judgments are routinely implemented by the state parties to the European Convention on Human Rights (ECHR). However, for over a decade dark clouds have been gathering over Strasbourg. The number of applications has been rising so sharply – partly due to the accession of a large number of new state parties to the ECHR – that the very work and survival of the Court seems to be at risk. It is precisely because of these high numbers that the Court has started to deal creatively with large-scale violations of human rights by way of so-called pilot judgments. This article will assess this new phenomenon which holds the promise of being the most creative tool the Court has developed in its first fifty years of its existence. First, it will look at what pilot judgments are and in which cases the Court has applied the pilot methodology. Secondly, the main reasons for setting up the pilot judgment procedure will be considered. Finally, this article will analyse the challenges the pilot judgment procedure faces, such as its legal basis and the position of applicants in comparable cases.

Monday, 30 November 2009

New Human Rights Articles in French

The newest issue of the Revue trimestrielle des droits de l'homme is out (No. 80, 2009). For those readers who are fluent in French: it contains a whole number of ECHR-related articles, dealing with a wide range of issues including jurisdiction, freedom of expression, the constitutionalization of the Court and more:

* Franz Matscher, La Cour européenne des droits de l’homme, hier, aujourd’hui et demain, au lendemain de son cinquantième anniversaire – Regards d’un ancien juge de la Cour
* Alec Stone Sweet, Sur la constitutionnalisation de la Convention européenne des droits de l'homme : cinquante ans après son installation, la Cour européenne des droits de l’homme conçue comme une Cour constitutionnelle
* Céline Romainville, Contentieux irakien et extraterritorialité : de la nécessité de dépasser Bankovic
* Gauthier de Beco, L’expulsion des étrangers mineurs délinquants : une lueur de clarté dans la jurisprudence de la Cour européenne des droits de l’homme
* Baptiste Nicaud, La Cour européenne des droits de l’homme face à la caricature de presse

Bonne lecture!

Friday, 27 November 2009

PACE Rapporteur Visits Italy on ECHR Implementation

Earlier this week, Christos Pourgourides , rapporteur of the Parliamentary Assembly of the Council of Europe (PACE) on the implementation of judgments of the European Court of Human Rights, visited Italy. In his talks with government officials he specifically addressed an issue all too familiar for Strasbourg watchers: the excessive length of judicial proceedings in Italy. In the past this led to a very large amount of Court judgments finding violations of Article 6 ECHR (right to a fair trial within a reasonable time). Here are some excerpts from the press release:

Mr Pourgourides called upon members of the Chamber of Deputies and the Senate, representing both the ruling party and the opposition, to act together to adopt all the necessary measures to speed up criminal and civil proceedings. The rapporteur also invited Italian parliamentarians to establish within the Parliament a committee to monitor the implementation of European Court judgments, and was assured that they would do so. During the visit, Mr Pourgourides also met the Prosecutor General and judges of the Supreme Court, as well as a number of other officials, to discuss problems with the implementation of the Strasbourg Court’s judgments.

This is the third in a series of visits by the same rapporteur aimed at mobilising parliamentary support in states where delays or other difficulties in implementing judgments of the European Court of Human Rights have arisen. The rapporteur has previously undertaken similar visits to Bulgaria and Ukraine, and will later travel to Greece, Moldova, Romania, the Russian Federation and Turkey.
Such a dialogue, provided adequate follow-up is given to it, is essential in strengthening the enabling environment for the European Convention on which I wrote here last week. A post on Mr Pourgourides' earlier report on the general issue of failing implementation of judgments can be found here.

Wednesday, 25 November 2009

Article on ECJ and ECtHR

The newest issue of the journal Law and Practice of International Courts and Tribunals (volume 8, no. 3) includes an article by Tobias Lock of University College Lodnen. It's entitled 'The ECJ and the ECtHR: The Future Relationship between the Two European Courts'. Here is the abstract:

The current relationship between the two European courts has been discussed in some great detail while the future of that relationship has been widely neglected. This is somewhat surprising as the entry into force of the Lisbon Treaty and with it of the EU Charter of Fundamental Rights as well as the EU's succession to the ECHR are probably going to take place before too long. The article first examines Article 52(3) of the Charter, which prescribes that the ECHR be the minimum standard of human rights in the EU. It is argued that Article 52 (3) does not entail a reference to the ECtHR's case law so that the ECJ will not be bound by that case law. After an accession of the EU to the ECHR, it is likely that both courts will assert that they have exclusive jurisdiction over the ECHR in inter-state cases, which creates a jurisdictional conflict for which a solution must be found. In addition, the article explores whether after an accession, the Bosphorus case law will have a future and whether the dictum found in Opinion 1/91 will be applicable, according to which the ECJ is bound by the decisions of courts created by an international agreement to which the EC is a party.

Monday, 23 November 2009

Article on ECtHR and Comparative Law

Monika Ambrus, a colleague within the Netherlands School of Human Rights Research, based at Erasmus University Rotterdam, has posted 'Comparative Law Method in the Jurisprudence of the European Court of Human Rights in the Light of the Rule of Law' on SSRN. The article has appeared in the Erasmus Law Review (vol. 2. No. 3, 2009). This is the abstract:

In several cases, comparative law exercises have been given excessive weight, which has given rise to conflicting interpretations in the case law of the European Court of Human Rights (ECtHR). This use of the comparative law method by the Court has been widely criticised. The critical voices have generally argued in terms of what is prohibited by the principle of the rule of law, which the Court itself is also bound to take into account, namely the arbitrary use of power. In the light of these criticisms, it is a challenging task to examine whether and to what extent the comparative law method complies with the principle of the rule of law, which is the aim of this paper. An analysis of several ECtHR cases demonstrates that in many respects the comparative exercises of the Court indeed do not comply with the requirements set by the formal conception of the rule of law. The application of the comparative law method is neither consistent nor sufficiently transparent. In addition to exploring the problematic aspects of the application of the comparative law method, the paper also formulates some recommendations in order to bring this method into accordance with the principle of the rule of law.

Friday, 20 November 2009

Saving the Court and Strengthening Human Rights - NGO Input for the Interlaken Process

Last week I attended a roundtable in London on the future of the European Court of Human Rights. It was jointly organised by a group of the main London-based human rights NGOs: Amnesty International, Human Rights Watch, the AIRE Centre, Interights, International Commission of Jurists, Justice, Liberty and EHRAC. In lively plenary discussions and in smaller groups the participants formulated possible ideas to strengthen the protection of human rights in Europe through the Court's Interlaken reform process. It was a generally shared feeling this protection should be the underlying core consideration in reforming the Court rather than only increasing the Court's efficiency. These are some of the central outcomes (in my own humble summary):

A Stronger Court
One main concern was the strengthening of the Court's independence and its ability to deal in a more flexible way with the challenges of the present and the future. This increased independence could come about by giving the Court a budget detached from the one of the Council of Europe (at present every increase in the Court's budget goes at the detriment of other very essential human rights tasks of the Council of Europe) and by a more transparent selection of the candidates for appointment as judges on the national level. There are currently huge differences between states in this respect. As to flexibility, a statute (easier to change than the Convention itself, but with more status than the Court's own rules of procedure) was seen as a good prospect as long as it would not be used to weaken the acquis of the current Court, such as the binding nature of interim measures. Reforms should not be used as a pretext to turn back the tide. In any event, the Court should not again become a hostage of protracted ratification processes of reform protocols to the Convention (as happened with Protocol 14).

A Better Enabling Environment
Secondly, it was considered important to significantly strengthen the enabling environment of the Court's work. This relates specifically to the implementation of the Court's judgments. The Committee of Ministers, which formally supervises such implementation, currently has a very dedicated but also very small staff of a few dozen people who have to deal with the supervision. The backlog of cases so known to Court watchers is now also a problem in the implementation phase. Increased NGO input during this phase would be helpful to get information on implementation in national cases to the Committee. Other main actors who could solidify this enabling environment are national human rights institutions and NGOs which could focus on monitoring state compliance with ECHR judgments - especially in cases of large-scale or systemic problems - and the Council of Europe's Commissioner for Human Rights who could pay structural and specific attention to the implementation of the Court's judgments in his discussions and reports concerning specific countries. To do this effectively, it is essential that the Court is as clear as possible in its judgments on what the Convention requires from states, as it increasingly does through pilot judgments. Put succinctly, the network aorund the Corut should be strengthened.

More ECHR Expertise at the National Level

I might add that at the other end of the horizon, where cases come to the Court, it is essential to increase expertise on how the Convention system works both among the general public but specifically among practising lawyers. ECHR as a standard part of legal education would be helpful, but also practical dissemination of information on admissiblity criteria and other matters within the state parties themselves. In that respect, an interesting pilot project (not to be confused with pilot judgments) is being undertaken in Poland - the Warsaw Pilot Project - where a lawyer has been appointed within the Council of Europe's Information Office to inform potential applicants about admissibility criteria and more generally about the ECHR. Such undertakings, either performed by a specially appointed lawyer or by national human rights institutions, might help to avoid part of the deluge of cases streaming to Strasbourg.

A short note on follow-up: the Swiss government, host of the Interlaken conference, will organise a consultation with NGOs in Strasbourg on 4 December. For those NGOs who want to get engaged on the national level to lobby their own governments, you can contact Jill Heine of Amnesty International for more information (jheine at amnesty.org). The Norwegian government (on 7 December) as well as the Parliamentary Assembly will both also organise conferences in the run-up to Interlaken.

Let us hope for a strong outcome of the Interlaken process, for the benefit over the over 800 million Europeans whom the Convention should effectively protect!

Thursday, 19 November 2009

De Facto Moratorium on Extraditions to Kazakhstan

Today the Court issued its judgment in the case of Kaboulov v. Ukraine (Appl. no. 41015/04) which in effect imposes a moratorium on extraditions to Kazakhstan on all ECHR state parties, unless credible assurances of safety would be offered by Kazakhstan. The applicant is a Kazakh national suspected of murder. In 2003 the applicant was arrested in Ukraine on the basis of an international arrest warrant. He applied to the European Court to prevent his extradition, amongst others complaining that he would face the risk of ill-treatment during detention and capital punishment.

Basing itself on reports of the Amnesty International, a UN rapporteur, the International Helsinki Federation, and the US State Department, the Court concluded that extradition would not violate the right to life, since there had been a moratorium on enforcement of the death penalty and that death sentences had been commuted to life imprisonment. By contrast, since there was uncontested information that torture and ill-treatment were regular occurences in Kazakh prisons as well as generally very poor prison conditions. Since this was a general situation, it did not matter that the applicant could not prove that he was personally and specifically in danger, since (para. 112) "it appears that any criminal suspect held in custody runs a serious risk of being subjected to torture or inhuman or degrading treatment, sometimes without any aim or particular purpose. Thus, the Court accepts the applicant’s contention that the mere fact of being detained as a criminal suspect, as in the instant case, provides sufficient grounds to fear a serious risk of being subjected to treatment contrary to Article 3 of the Convention." Extradition would thus violate article 3 ECHR.

One may note that the Court last year ruled more or less on the same issues, but then in respect to Turkmenistan. See my earlier post here. It seems that large parts of Central Asia are turning into no-go areas. If these countries ever want to have suspects extradited to them from any ECHR state party, they will have to get their act together and improve both their combat against torture and the conditions of their detention facilities. If this would indeed happen in the future, this would be an interesting de facto extraterritorial effect of Convention norms. The only possible alternative is credible assurances by Kazakhstan that the individual in question would not face the risk of treatment contrary to Article 3, but these assurances would have to be very credible in order for the Court to accept that they sufficiently countered the generally existing situation.

Wednesday, 18 November 2009

New Articles on ECHR

The newest issue of the European Human Rights Law Review has been published (no. 5 of 2009). It includes several ECHR-related contributions:

* James A. Goldston, Achievements and Challenges—Insights from the Strasbourg Experience for Other International Courts
Discusses aspects of the procedure and practice of the European Court of Human Rights and looks at what the Court may be able to offer to legal and human rights communities across the world. Examines: (1) the importance of patience and persistence in the process of establishing human rights procedural norms; (2) the Court's flexible approach, highlighting its treatment of cases involving racial violence and discrimination against the Roma; (3) the importance of managing expectations and forward planning to meet increased demand in applications; (4) issues of transparency and accessibility; and (4) the execution of judgments.

* Peter W. Edge, Sentencing the religious defendant
Discusses the role of religion in the sentencing process of criminal trials. Contends that religious interests have significance in sentencing and that European Court of Human Rights jurisprudence can negatively impact on the freedom to sentence religious defendants. Considers: (1) the manifestation of religion as a factor leading to a reduced sentence; and (2) situations where a defendant's offending is a manifestation of religion and whose faith is sufficiently strong to resist rehabilitation. Considers how to balance the weight to be given to religious concerns in sentencing by national courts.

* Achilles C. Emilianides, Do Minimum Age Requirements Violate the Right to Stand for Election under the European Convention on Human Rights?
Argues that the imposition of minimum age requirements for persons seeking to stand for elections breaches the rights enshrined in the European Convention on Human Rights 1950 Protocol 1 art.3. Discusses: (1) the active and passive aspects of the right to stand for election; (2) the specific right to free elections; (3) whether minimum age requirements breach Protocol 1 art.3, either on its own or in conjunction with art.14; (4) the need to establish that there is no reasonable and objective justification for the differing treatment regarding minimum age requirements; and (5) the scope of the "legislature " under Protocol 1 art.3.

The articles can be found on Westlaw.

Tuesday, 17 November 2009

(Re-)Election of Judges

Yesterday, the Court re-elected Jean-Paul Costa as its president for a period of three years. On the same day the British judge Bratza was re-elected as one of the two vice-presidents of the Court, also for three years (the other vice-president is Christos Rozakis). Finally, the Belgian judge Francoise Tulkens was re-elected as president of the Second Section of the Court. All elections were conducted by secret ballot. The re-affirmation of some of the Court's key positions comes at a crucial time. With the upcoming conference at Interlaken and with the expiry of the terms of a number of judges in 2010 (unless Russia ratifies Protocol 14, which would extend some of he terms), experience within the Court is something to be cherished.

The full composition of the current Court can be found here.

Monday, 16 November 2009

Concerns on Cooperation Duty of States

The Committee of Ministers has replied to a recommendation of the Parliamentary Assembly concering the duty of states to co-operate with the European Court. As readers will read below, this reaction is rather non-committal in spite of its explicit support for the Assembly's stance. This is worrying since it, inter alia, refers to undue pressure on applicants, their families and lawyers...

Doc. 12067, 13 October 2009

Member states’ duty to co-operate with the European Court of Human Rights

Recommendation 1809 (2007)

Reply from the Committee of Ministers

adopted at the 1067th meeting of the Ministers’ Deputies (9 October 2009)

1. The Committee of Ministers has examined Parliamentary Assembly Recommendation 1809 (2007) on “Member states’ duty to co-operate with the European Court of Human Rights”. It has brought the recommendation to the attention of member states and forwarded it to its Steering Committee for Human Rights (CDDH). The CDDH has given an opinion, appended to this reply, with which the Committee fully concurs.

2. It points out that in its interim reply adopted at the 1009th meeting of the Ministers’ Deputies (24 October 2007), it had congratulated the Parliamentary Assembly on the work accomplished in the preparation and adoption of Resolution 1571 (2007) and Recommendation 1809 (2007) on “Member states’ duty to co-operate with the European Court of Human Rights”.

3. As stated in the recommendation itself, the Committee of Ministers has, on numerous occasions, stressed the importance of member states’ obligation to co-operate with the European Court of Human Rights. For example, in its Resolution ResDH(2006)45, the Committee of Ministers, emphasising that respect of this obligation was of fundamental importance for the proper and effective functioning of the Convention system, deplored the fact that violations of this obligation had nevertheless continued to be found in recent judgments of the Court. In this resolution, the Committee of Ministers called on contracting states to ensure that all measures had been taken so that the relevant authorities complied with requests for assistance from the Court under Article 38 of the European Convention on Human Rights (“the Convention”) and to ensure that authorities effectively seized with such requests complied strictly with them.

4. The Committee of Ministers notes that questions relating to unlawful acts from which applicants to the Court, or people close to these applicants, had suffered, have been discussed on several occasions by the Ministers’ Deputies.

5. In view of the fundamental importance of member states’ duty to co-operate with the Court, the Committee of Ministers informs the Parliamentary Assembly that, in accordance with the opinion of the Steering Committee for Human Rights (CDDH), it is intending to draw up a draft resolution addressing the concerns expressed by the Assembly in its Resolution 1571 (2007) and its Recommendation 1809 (2007), in particular with regard to the protection of applicants, their lawyers and members of their family, the investigations to be carried out and the measures to be taken.

Appendix to the reply

CDDH opinion on Parliamentary Assembly Recommendation 1809 (2007) and Resolution 1571 (2007) on “Member states’ duty to co-operate with the European Court of Human Rights”

1. The Steering Committee for Human Rights (CDDH) concurs entirely with the Assembly that whilst states generally co-operate well with the Court, it is a matter of grave concern that isolated cases persist of interference with applicants, their families and their lawyers and other representatives.

2. The CDDH agrees fully with the Assembly’s conclusion that “the right of individuals to apply to the Court is a central element of the human rights protection mechanism in Europe and must be protected from interference at all levels.” It strongly supports the philosophy running through the Assembly’s report and adopted texts and shares the Ministers’ Deputies’ conclusion that the issues raised are of great importance for the effectiveness of the European system of human rights protection.

3. All States Parties to the Convention have undertaken not to hinder in any way the effective exercise of this right (Article 34 of the Convention). Furthermore, the Court’s case law has now clearly established that all States Parties are obliged to comply with an order of interim measures made under Rule 39 of the Rules of Court and that non-compliance may imply a violation of Article 34.

4. In particular, the CDDH would underline the Assembly’s recommendations to member states made in paragraphs 17.2 and 17.3 of Resolution 1571 (2007). These duties to protect and to investigate reflect states’ basic positive obligations that are an essential characteristic of the Convention system as a whole.

5. As regards the question posed by the Ministers’ Deputies concerning the advisability of drawing up a recommendation to member states along the lines proposed by the Assembly, the CDDH is of the opinion that such a course of action would not be appropriate at present. It suggests that the Deputies, by means of a resolution, echo the worries expressed by the Assembly in particular in paragraphs 17.2 and 17.3 of the aforementioned resolution. Finally, it considers that the issue of Rule 39 of the Rules of Court, including the question of its status, should be examined in detail in the context of future work on a Statute for the Court.

Wednesday, 11 November 2009

PACE : EU Accession to ECHR a Priority

The Lisbon Treaty which will reform the European Union will, after the final signature of the Czech president, enter into force in December. One of the innovations is the possibility for the EU to accede to the European Convention on Human Rights. Lluís Maria de Puig, the President of the Parliamentary Assembly of the Council of Europe (PACE), welcomed this development last week. He expressed the hope that accession would be a priority for the EU:

"As from next month, the 27-member EU will be in a position to become more democratic, more transparent and more effective. First and foremost, however, the entry into force of the Lisbon Treaty will afford the EU an opportunity to strengthen the principle of legal certainty by acceding to the ECHR of the Council of Europe, so that the actions and decisions of EU institutions will be subjected to the same external scrutiny as those of the member states.

Although there is now broad support for this accession, it is important that the declarations of intent swiftly be matched by deeds. As our Assembly recently pointed out, accession will convey a strong message of a clear commitment to the protection of human rights not only within the boundaries of the European Union but also Europe-wide, in keeping with the community of values shared by the Council of Europe and the European Union.

From now on, the preparations for accession must be top of the agenda in discussions between the two organisations."
However, the other end of the equation should not be forgotten: it is Protocol 14 to the ECHR which provides for EU accession. As readers of this blog will know, this Protocol still awaits its last ratification by the Russian Federation. Would the prospect of making the EU more accountable for human rights violations be a reason for the Russian Duma to look more postively at Protocol 14? In any event, Protocol 14-Bis, which was meant to increase the speed of reforms of the Court does not contain the EU accession provision from Protocol 14. No help can thus be expected from that side. EU and ECHR - never the twain shall meet?

Monday, 9 November 2009

Structure of Strasbourg Judgments

Professor Robin White of the University of Leicester has published the following article on SSRN: 'Judgments in the Strasbourg Court: Some Reflections'. This is the abstract:

This essay, which will in due course appear in M Andenas and S Vogenhauer (Eds), A Matter of Style? The Form of Judgments in the United Kingdom and Abroad: Essays in Honour of Lord Bingham of Cornhill, Hart Publishing, forthcoming, examines the structure of judgments in the European Court of Human Rights, and offers some reflections on the extent to which the form of judgments contributes to the aims of the Convention system.

Thursday, 5 November 2009

Book on International Law and ECHR

Frédéric Vanneste, formerly at the University of Leuven and now working for the Belgian Council of State, has just published his book General International Law Before Human Rights Courts - Assessing the Specialty Claims of Human Rights Law. Although it deals with a wider issue, an analysis of ECHR case law is one of the core elements of the book. This is the abstract:

This book analyzes how the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) deal with general international law. In the light of the concerns of various authors about the fragmentation of international law and the “human rightist” aspirations of human rights law, the question arises whether these human rights courts put the unity of general international law into danger.

The main idea of this study is that the ECtHR and the IACtHR may in principle only “elaborate” and not “depart” from or “contradict” general international law. A departure is only acceptable if a clear lex specialis has been established for human rights law.

The author researches whether or not the sometimes different case law of both human rights courts fits into this assumption. Almost all topics of general international law that have been dealt with by the ECtHR and IACtHR are analyzed: reservations, application of treaties ratione temporis, ratione loci and ratione personae, interpretation rules, the theory of the sources of international law, jus cogens, modification and withdrawal from treaties, diplomatic protection, exhaustion of local remedies, State responsibility (including the law of reparations), foreign State immunity and State succession.

This volume is of interest not only to human rights lawyers, but to all international lawyers. It explains how certain traditional concepts of general international law appear to function, and how other concepts need to be refined in order to create a more effective international order. This analysis may be a source of inspiration for other subsystems of international law like environmental law, WTO law, maritime law, space law, etc.
At the same publisher, a guide for practioners and others interested in bringing cases to the European Court of Human Rights has just been published by my colleague Yves Haeck - in Dutch: Procederen voor het Europees Hof voor de Rechten van de Mens, an impressive and very complete roadmap to Strasbourg.

Wednesday, 4 November 2009

Cruxifix in the Classroom Judgment

Religious symbols in public places have been a bone of contention in public discussions in many places around the world. Yesterday, the European Court added its contribution in the judgment Lautsi v. Italy. (Appl.no. 30814/06). The case concerned a complaint by a mother of children of 11 and 13 years old that the public school which they attended had a crucifix in each classroom. She contended that this was contrary to secularist principles by which she wanted to raise her children. Italian laws and regulations, partly dating from the Mussolini era, obliged public schools to display the crucifix in classrooms. In the Strasbourg proceedings Italy had argued that that the crucifix was not only a religious symbol, but also a symbol of Italian state and culture and therefore even could represent secularism. The reasoning of the Italian state, summarised in the judgment, is worth reading for the mere curiosity of its logic alone (even if one may understand the underlying concerns). The Court disagreed and found - unanimously - a violation of the freedom of religion (Art. 9 ECHR) jointly with the right to education (Art. 2 of Protocol 1). The Court, amongst others, took into account the nature of the religious symbol concerned (amongst the plurality of meanings, the Court held that the religious connotation of the crucifix was dominant) and its impact on young children. In two of the key paragraphs (para. 55-56) the Court held that the demands of pluralism in public schools called for a change in the Italian situation:

55. La présence du crucifix peut aisément être interprétée par des élèves de tous âges comme un signe religieux et ils se sentiront éduqués dans un environnement scolaire marqué par une religion donnée. Ce qui peut être encourageant pour certains élèves religieux, peut être perturbant émotionnellement pour des élèves d'autres religions ou ceux qui ne professent aucune religion. Ce risque est particulièrement présent chez les élèves appartenant à des minorités religieuses. La liberté négative n'est pas limitée à l'absence de services religieux ou d'enseignement religieux. Elle s'étend aux pratiques et aux symboles exprimant, en particulier ou en général, une croyance, une religion ou l'athéisme. Ce droit négatif mérite une protection particulière si c'est l'Etat qui exprime une croyance et si la personne est placée dans une situation dont elle ne peut se dégager ou seulement en consentant des efforts et un sacrifice disproportionnés.

56. L'exposition d'un ou plusieurs symboles religieux ne peut se justifier ni par la demande d'autres parents qui souhaitent une éducation religieuse conforme à leurs convictions, ni, comme le Gouvernement le soutient, par la nécessité d'un compromis nécessaire avec les partis politiques d'inspiration chrétienne. Le respect des convictions de parents en matière d'éducation doit prendre en compte le respect des convictions des autres parents. L'Etat est tenu à la neutralité confessionnelle dans le cadre de l'éducation publique obligatoire où la présence aux cours est requise sans considération de religion et qui doit chercher à inculquer aux élèves une pensée critique.

La Cour ne voit pas comment l'exposition, dans des salles de classe des écoles publiques, d'un symbole qu'il est raisonnable d'associer au catholicisme (la religion majoritaire en Italie) pourrait servir le pluralisme éducatif qui est essentiel à la préservation d'une « société démocratique » telle que la conçoit la Convention, pluralisme qui a été reconnu par la Cour constitutionnelle en droit interne.
One may note, that the Court thinks this applies in general in the exercise of public functions by the state and particularly (but not solely) in classrooms.

Italy has already indicated that it wants the Grand Chamber of the Court to have a look at the case. Even if the judgment was unanimous - which would decrease chances for reconsideration - this could happen since it is an issue which can be considered of major importance in many ECHR state parties. In addition, a bit more clarity would be welcome on the extent to which this judgment should be explained as a complete and aboslute ban on religious symbols in public schools (as the reasoning of the judgment seems to argue towards that conclusion) or simply that the obligation for public schools to display such symbols is contrary to the Convention (as the final part of the judgment seems to indicate as one of the key reasons for concluding that the Convention was violated). The judgment seems to lean towards the first of these two explanations. Some pragmatism might be called for here and this will certainly not be the end of the discussion of this issue.

For coverage in the European press, see the article in yesterday's Guardian newspaper here and in Le Monde here. Both newpapers report that the Italian government has classified the Court's ruling as ideologically motivated. The judgment has provoked strong reactions amongst Italians themselves as well, with a on online petition being signed by tens of thousands of people within a day. This is the report from the Italian newspaper Corriere della Sera, in which - one may note - the nationality of all the judges in the Chamber are mentioned (sic!).

Tuesday, 3 November 2009

Seminar on 50 years ECtHR in Athens

On Monday 9 November, the Athens Bar Association will organise a seminar entitled '1959-2009: 50 years since the creation of the European Court of Human Rights'. Speakers at this event include the Court's president Jean-Paul Costa, President of the ECtHR, the Greek judge in Strasbourg (and one of the Court's vice-presidents) Christos Rozakis, and the head of the Greek section in the registry of the Court, Marialena Tsirli. Also speaking: Dimitrios Paxinos, the President of the Athens Bar Association, the Presidents of the Supreme Courts of our Greece, and the Minister of Justice. The event starts at 17h30 at Odos Aiolou 82-84 in Athens. Later this month a special issue of the Greek law journal Nomiko Vima will be published on the same theme.

Monday, 2 November 2009

ECHR Articles: Miscellaneous

Each month, our library at the Netherlands Institute of Human Rights SIM, publishes online overviews of human rights articles in academic journals and yearbook - a truly helpful resource. Here are some references to ECHR-related articles in the most recent overview of some more unlikely series in which you can find something on the ECHR:

* P. Rowe, 'Non-international armed conflict and the European Court of Human Rights: Chechnya from 1999', New Zealand Yearbook of International Law (available at heinonline) vol. 4 (2007) pp. 205-228.
* A. Garay, 'Association les Témoins de Jéhovah v France: the jurisprudence of the European Court of Human Rights on religious activities and taxation issues', Religion and Human Rights, vol. 3, no. 2 (2008), pp. 185-190.

Friday, 30 October 2009

Conference on ECHR and (International) Criminal Law

On 19 and 20 February 2010 the University of Geneva is organising a conference on the influence of the ECHR on (international) criminal law. The conference will largely be in French. This is the programme:

Si le droit international des droits de l’homme peut justifier l’organisation d’une répression internationale pour réagir à la violation massive de droits fondamentaux les plus indérogeables, il doit aussi impérativement la légitimer. Ce qui veut dire qu’un strict respect des droits de l’homme devrait s’imposer aux juridictions pénales internationales. Selon certains critiques, cependant, la justice pénale internationale se caractérise plutôt par un certain affaiblissement des garanties traditionnellement reconnues par les instruments de protection des droits de l’homme, à la fois dans le registre du droit matériel et dans celui du droit procédural. Ce colloque a pour objectif de discuter en profondeur des paradoxes et des tensions qui entourent le binôme « droits de l’homme-justice pénale internationale ». Les conférences seront données en français ou en anglais, sans traduction


Vendredi 19 février 2010

9 h 00 Accueil et mot de bienvenue de Christian Bovet, doyen de la
Faculté de droit
Présidence : Robert Kolb/Marco Sassòli (Université de Genève)
9 h 15 Introduction (Paola Gaeta et Robert Roth, Université de Genève)
9 h 30 Enjeux généraux (William A. Schabas, National University of
Ireland, Galway)
10 h 00 La place des juridictions des droits de l’homme et des tribunaux
pénaux internationaux dans le système international (Emmanuel
Decaux, Université de Paris II)
10 h 30 Pause café
11 h 00 Enjeux procéduraux; les droits de l'accusé (Christoph Safferling,
Universität Marburg, et Salvatore Zappala, Università di Catania)
12 h 00 Discussion
12 h 30 Pause déjeuner
Présidence : Françoise Tulkens, juge à la Cour européenne des
droits de l’homme
14 h 00 Ne bis in idem et le concours d'infractions (Andre Klip, Université de
14 h 30 L'influence de la CourEDH sur la détermination du droit matériel:
liberté d'opinion et incrimination de la publicité faite aux crimes
internationaux (Emanuela Fronza, Università di Trento)
15 h 00 Discussion
15 h 30 Pause café
16 h 00 La torture et les traitements inhumains et dégradants (Olivier de
Frouville, Université de Montpellier)
16 h 30 Les peines de longue durée (Damien Scalia, Université de Genève)
17 h 00 Discussion

Samedi 20 février 2010

Présidence : Nicolas Michel (Université de Genève et Institut de
hautes études internationales et du développement)
9 h 00 Table ronde
· Christine Van den Wyngaert, juge à la Cour pénale
· Antonio Cassese, président du Tribunal spécial pour le Liban
· Stefan Trechsel, juge ad litem au Tribunal pour l’ex-
· Françoise Tulkens, juge à la Cour européenne des droits de
· Luc Walleyn, avocat à Bruxelles, Conseil à la Cour pénale
11 h 30 Discussion générale
12 h 30 Conclusions
Andrew Clapham, Directeur de l’Académie de droit international
humanitaire et des droits humains, Genève
13 h 00 Fin du colloque
Attendance is free, but participants are required to register in advance. For more information, one can email jacqueline.messerli at unige.ch

Thursday, 29 October 2009

Article on Structure of Fundamental Rights and ECHR

Two former colleagues of mine at Leiden University, Janneke Gerards and Hanneke Senden, have written a clear analysis of the Court's sometimes not very precise reasoning in distinguishing between the definition of the scope of rights and the examination of the justification for interferences of such rights. The article, set to appear in the upcoming issue of the International Journal of Constitutional Law is entitled 'The Structure of Fundamental Rights and the European Court of Human Rights'. This is the abstract:

An important aspect of the structure of fundamental rights is the bifurcation between the definition of scope and the review of justification. This bifurcation is of great importance to the division of the burden of proof and to the use of argumentative tools such as the doctrine of the margin of appreciation. Nonetheless, it appears that the European Court of Human Rights does not always take the bifurcation seriously. It often omits to address issues of definition or merges the two elements into one single test. This paper highlights some of the problematic consequences of the Court’s approach towards the structure of fundamental rights. In the end, the Court’s current approach may hamper the effectiveness of the Convention system and limit the protection offered to individual citizens. A more structured approach towards the scope and definition of Convention rights may help to avoid or solve these problems.

Monday, 26 October 2009

Laundry and the Scope of Article 6

When in 1985, a Maltese woman was hanging some laundry from her window above the courtyard of her downstairs neighbour, she would never have guessed that the ensuing dispute would lead - years after her death - to a judgment by the Grand Chamber in far-away Strasbourg. Yet, that is exactly what happened earlier this month as the European Court handed down its judgment in the case of Micallef v. Malta (Appl.no. 17056/06). It found a violation of the right to a fair trial, just as a section of the Court found last year. The main reason was that one of the judges in the domestic proceedings was close family of the lawyer of the other party in the dispute.

But the key issue in this Grand Chamber case can be found in a new approach to the scope of the "civil limb" of Article 6 ECHR, which does not cover all judicial proceedings but only those that relate to criminal chargers and civil rights and obligations. The line of the Court thus far was that interim measures such as injunctions did not fall within the scope of Article 6. However, in this judgment the Grand Chamber adopted a new approach, pointing to a widespread consensus in Europe (including the position of the ECJ!) and to the reality that in many cases interim measures "will often be tantamount to a decision on the merits of the claim for a substantial period of time." Thus the European Court considered it justified to hold that Article 6 covers interim measures, but depending on certain conditions. In order not to distort the very detailed reasoning of the Court (on which a few of the dissenters disagree by the way), I quote them here in full:

84. First, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under Article 6 of the Convention (see, inter alia, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 39, Series A no. 301-B; König v. Germany, 28 June 1978, §§ 89-90, Series A no. 27; Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31, ECHR 2001-VII; and Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005-X).

85. Second, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable.

86. However, the Court accepts that in exceptional cases - where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process - it may not be possible immediately to comply with all of the requirements of Article 6. Thus, in such specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensable and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceedings at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measure in question.
Another point, again emphasized in some of the dissents, is whether such a trivial case merits consideration by the European Court and whether the applicant, the brother of the deceased protagonist in the case, was a victim himself. Well worth reading also in the context of the discussion to what extent the system offers venues for proceedings which resemble an actio popularis.

Friday, 23 October 2009

New Issue of Human Rights Law Review

The newest issue of the Human Rights Law Review (volume 9, No. 3, 2009) includes three articles which deal with ECHR matters. The first is by professor Wojciech Sadurski and is entitled 'Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments'. I earlier read the working paper version of it and can wholeheartedly recommend it. Especially the issue of pilot judgments is one on which I am also currently doing research (e.g. for a special ECHR issue of the Greek law journal Nomiko Vima, to appear later this year, and for a forthcoming book on ECHR and Conflict). This is the abstract of Sadurski's engaging article:

The accession of Central and East European States into the European Convention of Human Rights system was both a threat and a promise to the system. The threat resulted not only from the substantial increase of the number of Contracting States and that of the case-load, but also from the demise of a consensus which was, originally, presupposed by the system of protection of human rights in Western Europe: original members of the Council of Europe were ‘like-minded’ and the Convention system did not represent a challenge to their internal patterns of human rights protection. This article, however, focuses on a promise: a possibility for the European Court of Human Rights to abandon once and for all the fiction that it is merely a sort of super-appellate court which scrutinises individual decisions rather than laws in Contracting States. This shift towards a quasi-constitutional role, going beyond the simple identification of wrong individual decisions so as to point to systemic legal defects, was triggered by systemic problems within the new Contracting States, while also facilitated by collaboration between the European Court of Human Rights and national constitutional courts. The emergence of so-called ‘pilot judgments’ is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court effectively ‘pierces the veil of the State’, and positions the European Court as a quasi-constitutional judicial body at a pan-European level.
Also in this issue of HRLR, two extensive case law commentaries:

* Sangeeta Shah, 'From Westminster to Strasbourg: A and others v United Kingdom'
* Steve Foster, 'Reluctantly Restoring Rights: Responding to the Prisoner's Right to Vote'

Thursday, 22 October 2009

Human Rights Conference in Newcastle

It's still some months away, but the University of Newcastle is organising a conference on 23 January 2010 entitled 'Human Rights – A Drop of Liberation or Fig Leaf of Legitimation?', which will partly be devoted to ECHR-related issues. Here is the announcement:

Confirmed Speakers:
* Professor David Kennedy, Harvard University - ‘The International Human Rights Movement: Still Part of the Problem?’
* Professor Keith Ewing, Kings College London - Title to be confirmed
* Professor David Bonner, University of Leicester - ‘If you cannot change the rules of the game, adapt to them: United Kingdom responses to the restrictions set by Article 3 ECHR on “national security” deportations’
* Professor Christine Bell, University of Ulster - ‘Human rights activism, expertise and academic inquiry: beyond legitimation v emancipation - a self-critical reflection’
* Steven Wheatley, Reader, University of Leeds - ‘The problematic authority of international human rights law.’

This symposium draws upon the proliferation of academic commentary asserting that the international human rights system is in a state of crisis in the first decade of the twenty-first century, a discourse which requires an evaluation of both the impact and future direction of the human rights project. With papers from world leading authorities on human rights, this symposium provides a forum for the re-evaluation the effectiveness of human rights as an element of international law and in the domestic context of the United Kingdom at the end of a decade when the human rights project has faced renewed and novel challenges. Moreover, this Symposium draws together skeptics and supporters as well as disparate strands of transatlantic scholarship.

A limited number of places for delegates are available on a first-come-first-served basis, at a cost of £30 per head (or £10 per head for full-time postgraduates), inclusive of lunch and refreshments. Full details of the Conference Programme are available on the Newcastle Law School Website. For further details regarding this symposium, please contact Dr Rob Dickinson (r.a.dickinson at ncl.ac.uk) or Dr Ole W. Pedersen (ole.pedersen at ncl.ac.uk).

Tuesday, 20 October 2009

Satire and the Freedom of Expression

This is a picture of a carnival parade in which US president Barack Obama is shown with wings carrying the text of his campaign phrase "Yes we can", to which the figure Europa is clinging with the text "We too". Benevolent humour with a clear reference to a topical political issue. Two cases of comparable satire were decided by the Court recently. In both cases the authorities involved had violated the freedom of expression in punishing various forms of satire.

The first was the case of Kuliś and Różycki v. Poland (Appl.no. 27209/03), decided by the Court on 6 October. This concerned the publication of cartoons in a children's magazine. The cartoons were a parody on an advertising campaign by a potato crisps company, Star Foods. The cartoons depicted a child talking to a famous dog cartoon character for children, Reksio, saying: "Don't worry, I would be a murderer too if I ate this muck!". It was a direct reaction to the company's advertising campaign in which the popular character Reksio was oddly called a murderer (other parts of the campaign referred to sexual behaviour or alcohol or were even racist). The potato crisps producer was not amused by the parody and sued the magazine. The publisher and editor were sentenced by domestic courts to publicly apologize for the cartoons and to pay an amount of money to a charity. The main justification given by the Polish courts was that the cartoons discredited the crisps unjustifiedly. The defence of the applicants was that the cartoons were meant as a satirical comment on the advertising campaign, not on the product as such. The European Court agreed with them, emphasizing that a certain degree of "exaggeration or even provocation" was permissible for the press, especially when it concerned a question of public interest. In this case, the Court held that in para. 38 "that the applicants' aim was not primarily to denigrate in the minds of readers the quality of the crisps but to raise awareness of the type of slogans used by the plaintiff company and the unacceptability of such tactics to generate sales."

The other case is directly related to carnival itself. In Alves da Silva v. Portugal (Appl.no. 41665/07), the applicant was prosecuted and convicted for driving around during carnival with a puppet representing the mayor of Mortágua with symbols of corruption on the puppet and for broadcasting a pre-recorded message of satire on the Mayor's suggested illegal acts. The applicants was ordered to pay a fine, damages and costs of over 4,000 euros. Again, the European Court decided in favour of the applicant and held that the expressions were clearly satirical and in the context of carnival could hardly be taken literally. It stressed once more the importance of satire in public debate. One may add that the mayor of this Portuguese town has not at all understood the essence of carnival which very essence is - as any anthropologist could have told him - a reversal of roles, a topsy-turvy festival in which the powerless criticise the powerful.

The judgments can be found on the HUDOC search engine and the press releases can be found here. The second judgment is only available in French.

Both cases could be laughed off as bizarre instances of the kind of situations that reach Strasbourg. But equally, they point to a worrying development in various European countries in which commercial or political interests are attacking even the most innocuous expressions. In that respect, it is good that the European Court is taking jokes seriously.