Friday, 23 December 2011

Christmas Break

The end of the year is approaching. 2011 was a very eventful year for the European Court of Human Rights. Apart from issuing important case-law, it has also come under intense criticism in some state parties and new reforms to increase its efficiency are again on the table. On a positive note, the backlog in the workload seems in the last few months, according to insiders, for the first time to be slightly decreasing. Let us hope that trend will continue in the new year so that finally the waiting times for applicants will start to decrease in stead of increase. More importantly even, let's also hope that state parties will finally take their part of the subsidiarity principle more seriously, by more effectively protecting human rights close to home, at the national level.

This blog has meanwhile continued to grow, due especially to the support of many readers who provide me with ECHR-related news, events and academic articles. This year, the blog reached over 150,000 pageviews from 178 countries! Please continue to send me your information, views and suggestions for guest posts on case-law - this blog is in many ways, like the Convention, a living instrument! Many thanks to all.

I will be back with new posts in January. I wish all the readers of this blog happy holidays. May 2012 be a healthy and good year for all of you!

Tuesday, 20 December 2011

Research Reports of the Court

In the course of this year, the registry of the European Court of Human Rights has published a number of so-called 'research reports' online. In the form of succinct handbooks they provide analytical information on the Court's case-law on a (sofar) restricted number of themes:

* Internet: case-law of the Court

* Child sexual abuse and child pornography in the Court's case-law

* Use of Council of Europe treaties in the case-law of the Court

* The role of the public prosecutor
* The freedom of religion
(in French)
* Cultural rights

A very useful starting point for researchers and for possible litigants.

Monday, 19 December 2011

New ZaöRV Articles on ECHR

The newest issue of the Zeitschrift for ausländisches öffentliches Recht und Völkerrecht, also known as the Heidelberg Journal of International Law (vol. 74, no. 4, 2012) has just been published. It includes two articles relating to the European Convention on Human Rights:

* Matthias Klatt, 'Positive Obligations under the European Convention of Human Rights'

* Sina van den Bogaert, 'Roma Segregation in Education. Direct or Indirect Discrimination?'
Abstracts are not available.

Friday, 16 December 2011

Lord Irvine's Take on the ECHR

Last Wednesday, Lord Irvine of Lairg, the 'architect' of the Human Rights Act, delivered a lecture at the Bingham Centre for the Rule of Law adding to the discussion on the ECHR in the United Kingdom. The lecture is entitled 'A British Interpretation of Convention Rights'. As Lord Irvine stated at the start of his lecture, he aimed:

(a) to ensure that the Supreme Court develops the jurisdiction under the HRA that
Parliament intended;
(b) that, in so doing, it should have considered and respectful regard for decisions of the ECHR, but neither be bound nor hamstrung by that case-law in determining Convention rights domestically;
(c) that, ultimately, it should decide the cases before it for itself;
(d) that if, in so doing, it departs from a decision or body of jurisprudence of the ECHR it should do so on the basis that the resolution of the resultant conflict must take effect at State, not judicial, level; and
(e) by so proceeding, enhance public respect for our British HRA and the development and protection of human rights by our own Courts in Britain.
Bound to raise more discussion!

Tuesday, 13 December 2011

ECHR Implementation in Central and Eastern Europe

Frank Emmert, of the School of Law of Indiana University, has posted the findings of an upcoming book ('The European Convention on Human Rights and Fundamental Freedoms in Central and Eastern Europe', Eleven International Publishing, 2012) on SSRN in a paper entitled 'The Implementation of the European Convention on Human Rights and Fundamental Freedoms in New Member States of the Council of Europe - Conclusions Drawn and Lessons Learned', which signals the great amount of work still to be done on ECHR implementation. This is the abstract:

In the book, some 25 authors report on the implementation of the ECHR in their respective countries, including questions of ratification and implementation in law, awareness by legal professionals, inclusion in the curricula of law schools, practice of the courts, cases brought to Strasbourg, and execution of judgments of the EuCrtHR on the domestic level. The Conclusions summarize the findings and make recommendations for better implementation of the ECHR by better protection of fundamental rights and freedoms, more effective national remedies, and pro-active changes of laws, institutions, and procedures, after judgments against other Member States of the Council of Europe.

Monday, 12 December 2011

Op-Ed on European Court

Emma Bonino (member of the Italian Senate and former European commissioner) and James Goldston (executive director of Open Society Justice Initiative) have added their voices to the debate about the European Court of Human Rights. In an Op-Ed published in the online journal European Voice they plead for an independent and strong Court. Here is the first paragraph of the text - the rest can be found on the website of the European Voice:

The UK has yet to put forward firm proposals, but the coalition government has indicated it is considering, among others, steps to give the court more control over its overwhelming docket. This UK government is not the most likely champion of the ECHR: David Cameron, the prime minister, has made it clear he thinks the ECHR has overreached itself, most famously in a 2005 ruling against a blanket British ban on prisoners' voting, which the UK has yet to implement. But what is more important than the specifics presented by the UK is the broader impetus behind the proposals, which would in any case require the approval of all 47 member states. This push to reduce the Court's caseload, and other problems, may determine whether the Strasbourg Court lives or dies.

Thursday, 8 December 2011

Paper on National Judicial Treatment of the ECHR

Giuseppe Martinico, of the Centro de Estudios Politicos y Constitucionales in Madrid and the European University Institute in Florence, has posted a paper on the differences and similarities between EU and ECHR law in national legal orders. It is entitled 'The National Judicial Treatment of European Laws: Are National Judges Extending Primacy and Direct Effect to the ECHR?'. This is the abstract:

The aim of this study is to answer the question: “Are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights”? This paper investigates the similarities and differences between the national judicial treatment of the ECHR and EU laws in the context of some selected constitutional experiences. It examines whether or not national judges treat the ECHR and EU law in the same manner, and the extent to which they facilitate the convergence of these laws. In this respect the goal of the project is to study the judicial application of the ECHR and EU law to analyse the vertical relationship between the national judges (both constitutional and ordinary judges) and these forms of external laws. As such, I am not interested in the horizontal convergence between the European Court of Human Rights and the European Court of Justice (ECJ). Rather, my investigation is limited to the vertical dimension of convergence. Obviously these two dynamics are strongly related and both European courts have undergone deep transformations in the last few years, especially after the enlargements of the EU and the Council of Europe.

Wednesday, 7 December 2011

Important Housing Rights Judgment

What to do when one buys a house or an apartment in good faith, but it later on expires that the original owner had acquired it by fraud? To what extent should the interests of the new bona fide owner then be protected? These questions arose in the case of Gladysheva v Russia in which the Court rendered judgment this week. Svetlana Gladysheva bought an apartment in moscow from an earlier owner. That person had, in turn bought it from a certain Ms Ye, who had bought the (formerly social housing) apartment from the state under a privatisation scheme. Several years later, the authorities found that Ms Ye had bought the flat through fraud and as a consequence they declared that the flat had therefore illegally been removed from the city of Moscow's possession. Although they acknowledged that Gladysheva had bought the apartment in good faith, they revoked her title to the flat and even issued an eviction order.

In Strasbourg ,the applicant complained that the revocation of the title to the apartment was contrary to Article 1 Protocol 1 (P1-1, protection of possessions) and that the eviction order violated article 8 (respect for the home. In its judgment, the European Court of Human Rights indeed found two violations of the ECHR.

As to P1-1, the Court noted that the revoking of the applicant's title was disproportionate. Specifically, the fact that the fraud was only discovered years later was completely due to the authorities themselves. It was not for the applicant, the Court assessed, to (para. 79) "assume the risk of ownership being revoked on account of defects which should have been eliminated in procedures specially designed to do so. The authorities’ oversight could not justify subsequent retribution against a bona fide buyer of the property in question." Moreover, no compensation whatsoever nor any prospect of alternative housing had been offered. The Court concluded that the state should have born the consequnces of its own mistakes and should not have put them on the shoulders of an individual citizen - this constituted an excessive burden.

As to Article 8 ECHR, the Court focused on the eviction order, which in itself amounted to an interference with Article 8 even though it had not been carried out yet (this follows from earlier case-law). The legitimate aim - protecting the rights of people on waiting lists for social housing - was accepted by the Court as a legitimate one. However, automatically ordering an eviction after the ownership rights had been taken away, without taking Ms Gladysheva's interests into account at all, violated Article 8. No proportionality assessment was made, no other individualised interest which would outweigh the applicant's attachment to the flat were shown, and no alternative housing or shelter had been offered.

The Court also ordered a specific form of reparation in this case> Under Article 41 ECHR (just satisfaction) it held that the most appropriate way of redressing the violations - specifically because no countervailing third-party individual interest was at stake - was to simply restore the title of ownership to Ms Gladysheva and to reverse the eviction order. This comes on top of the 9,000 euros which Russia has to pay the applicant for non-pecuniary damages. In the part of the judgement on just satisfaction, the Court re-emphasizes specifically the "central importance of the right to home [sic!] in the Convention hierarchy of rights" (para. 105). Housing issues in relation to Article 8 are of central importance for someone's "settled and secure place in the community" (para. 93).

This judgment sends a clear signal that national authorities should take housing rights, specifically the protection of the home, seriously. Under the ECHR, this is more than a simple property issue - respect for the home also has important social and other connotations which strengthen the protective umbrella of the ECHR (the issue of attachment to a home counts) in such cases. Individual interests based on this should always be taken into account by states when interfering with housing rights. To put it differently, human rights start at home!

Monday, 5 December 2011

Immunity of Judges in Practice

The question of the immunity of judges arose in Strasbourg in the past two months in the context of a search of the Romanian house of judge Corneliu Bîrsan, one of the Court's longest-serving judges (since 1998). The direct reason was that the wife of judge Bîrsan, a judge serving in Romania's highest appeal court, is being investigated for corruption, on the suspicion of accepting bribes (jewellery and travels). When the couple's home was searched in Romania, this raised problems with regard to immunity of judges of the European Court of Human Rights. On 10 October the President of the European Court issued a statement in which he indicated that immunities of Strasbourg judges in principle also cover their spouses (under the Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe and Article 51 of the European Convention on Human Rights) and showed his concern that Romania had not requested a waiver of immunity. As the press release states:

"in carrying out a search in the home of the Romanian judge as part of an inquiry concerning allegations about his wife the rules on immunity may not have been respected. The Court has requested the Romanian Government to indicate whether they have grounds for asking the Court to waive the judge’s immunity. Under the terms of Article 4 of the Sixth Protocol only the plenary Court is empowered to waive a judge’s immunity."
This wake-up call led to a Romanian reaction only after a few weeks. On 16 November Romania asked for such a waiver. Within a week, the plenary Court decided to allow a waiver of imunity for judge Bîrsan's wife but not for himself and only to the extent "strictly necessary for the investigation". It added that this waiver has no retroactive effect. The earlier search is thus in principle still contrary to the Protocol on privileges and immunities. As to the political side of the matter, Romania is currently being monitored by the European Commission as part of post-accession mechanisms of the European Union. One of the main points of concern is the extent to which the country is serious about its fight against corruption. Even this battle itself, however, will have to comply with the rule of law.

See also coverage by the EU Observer here and here.

Friday, 2 December 2011

Admissibility Checklist

Today, the Court launched yet another tool to make sure no clearly inadmissible applications are lodged in Strasbourg: an admissibility checklist. Whereas previous efforts were focused to a large extent on lawyers, this new initiative is aimed at the applicants themselves. In the Court's own words, with caveats well-known to anyone trained in law:

The Court is today publishing an on-line admissibility checklist which is designed to help potential applicants work out for themselves whether there may be obstacles to their complaints being examined by the Court. The checklist has been developed against the background of the continuing massive inflow of inadmissible applications which represent a heavy burden for the Court and its Registry and contribute to preventing well-founded cases from being decided in a timely fashion. The checklist is purely indicative and has no legal force. Nevertheless it is hoped that it may serve to save applicants the time and frustration which pursuing an inadmissible application entails.
One may note that before one gets to the actual checklist a page with number about the high numbers of inadmissible cases appears, an implicit dissuasive tool or just a factual warning?

Wednesday, 30 November 2011

More New ECHR Academic Publications

And yet another batch of academic works about the European Convention on Human Rights - it would take many metres of bookshelves a year to stack them all!. Thankfully, an increasing part of it is available online:

* Alexandra Timmer, 'Toward an Anti-Stereotyping Approach for the European Court of Human Rights, Human Rights Law Review (Vol. 11, no. 4, 2011).

* Cedric Ryngaert, 'The European Court of Human Rights’ Approach to the Responsibility of Member States in Connection with Acts of International Organizations', International & Comparative Law Quarterly (Vol. 60, no. 4, 2011).

* C. Popa, 'The guarantee of the person's right to liberty and security before the national courts and the European Court of Human Rights, referring to the reasonable term of the procedures', Acta Universitatis Lucian Blaga (no. 1, 2010), pp. 273-280).

* G. Blower and C. Kelly, 'Thematic analysis: criminal law, evidence and the European Court of Human Rights', Cambridge Student Law Review (vol. 7, no. 2, 2011) pp. 38-41.

* N. Croquet, 'The European Court of Human Rights' norm-creation and norm-limiting processes: resolving a normative tension', Columbia Journal of European Law (vol. 17, no. 2, 2010/2011), pp. 307-374.

* D. Regan, '"European consensus": a worthy endeavour for the European Court of Human Rights?', Trinity College Law Review (vol. 14, no. 1, 2011), pp. 51-76.
And finally, the Emory International Law Review (vol. 25, no. 1, 2011) includes two articles on the ECHR:

* A. Pin, 'Public schools, the Italian crucifix, and the European Court of Human Rights: the Italian separation of church and state', pp. 95-150.
* J. Cornwall, 'It was the first strike of bloggers ever: an examination of Article 10 of the European Convention on Human Rights as Italian bloggers take a stand against the Alfano Decree', p. 499-538.

Tuesday, 29 November 2011

New Version of CoE Human Rights Education for Legal Professionals Website

Yesterday, a revamped and improved version of the Council of Europe's HELP site, short for Human Rights Education for Legal Professionals, was put online. The HELP programme is an often overlooked but essential nexus between the Strasbourg system and national legal practitioners. As the website of the programme phrases it:

The HELP Programme assists national training institutions in developing their curricula for initial and continuous training, updating the HELP website, developing ECHR courses, modules and methodologies, organising pilot E-learning training courses and reinforcing the capacity of national ECHR trainers. It builds on already existing structures and training courses, inter alia by providing and enhancing possibilities for co-operation and the exchange of information among beneficiary countries.

The project already includes the national training institutions for judges and prosecutors of 13 Council of Europe member states: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Georgia, Moldova, Montenegro, Russian Federation, Serbia, The former Yugoslav Republic of Macedonia, Turkey and Ukraine.
The websites includes announcements on national training events and links to relevant blogs.

Monday, 28 November 2011

New Publications on ECHR and Good News

The end of this month brings a broad range of new ECHR-related publications, both books and articles. Please find an overview here:

* Nicolas Bratza (current president of the Court) has published an article entitled 'The relationship between the UK Courts and Strasbourg' in the European Human Rights Law Review (2011, No. 5, pp. 505-512).

The Human Rights Law Journal (vol. 30. No. 1-12, a bit older, but I had not mentioned it before I think) includes, apart from a number of case reports, three articles on the ECHR:

* Michael O'Boyle, 'Electoral Disputes and the ECHR: An Overview'
* Jörg Polakiewicz, 'European Union Action on Procedural Rights and the European Convention on Human Rights'
* Helen keller, Daniela Kühne, and Andreas Fischer, 'Draft Statute for the European Court of Human Rights - A Contribution to Reforming the European System'
There is a new book on the Council of Europe:

* Martyn Bond, 'The Council of Europe Structure, History and Issues in European Politics', published by Routledge.
And there is a new advisory report on the Court:
* The Dutch Advisory Council on International Affairs (AIV) has published a new short advisory report to the Dutch government on the European Court of Human Rights. Unfortunately it is thus far only available in Dutch, but it will get translated in the near future.
And finally, although I do not usually post about myself on here, this is something I am so happy about that I wanted to mention it: just last week, the Royal Dutch Academy of Sciences (KNAW) decided to appoint me as one of this year's ten new members of its Young Academy. In their own words, that is "a dynamic and innovative group of top young scientists and scholars with outspoken views about science and scholarship and the related policy. The Young Academy organises inspiring activities for various target groups focusing on interdisciplinarity, science policy, and the interface between science and society." I am truly honoured by this appointment and look forward very much to contributing to the Academy's activities!

Tuesday, 22 November 2011

Article on EU Accession to the ECHR

Profesor Martin Kuijer of the Free University of Amsterdam, who is also the senior adviser on human rights to the Minister of Security and Justice in the Netherlands, has published an article on EU accession to the ECHR in the latest issue of the Amsterdam Law Forum (vol. 3, no. 4, 2011). It is entitled 'The accession of the European Union to the ECHR'. This is the abstract:

This article outlines the European Union’s gradual progression towards a legal obligation to observe human rights: a series of stops and starts from Brussels to Strasbourg with a starring role for Luxembourg and significant supporting roles for Berlin and Karlsruhe. This commitment towards human rights will acquire a new dimension. The Lisbon Treaty requires the European Union to accede to the European Convention on Human Rights (ECHR). With the entry into force of the 14th Protocol to the ECHR, Strasbourg too is now ready to accept the EU as a party to the Convention. But the real work is still to come: the negotiations about the modalities of the accession are underway. This article looks at the main subjects for discussion. Is the EU, as a new party to the ECHR, the ultimate anniversary gift for Strasbourg, or is it a potentially troublesome guest at the party?

Monday, 21 November 2011

Three New PACE Reports on the ECHR and the Court

Last week, the Committee on Legal Affairs and Human Rights of the Council of Europe adopted three reports on the ECHR and on the European Court of Human Rights. Two of them were presented by rapporteur Marie-Louise Bemelmans-Videc, her last as member of PACE:

* Guaranteeing the authority and effectiveness of the European Convention on Human Rights.In a press conference the rapporteur pointed at the problems facing the Court and specifically at the lack of funds to tackle all issues effectively:

"The yearly cost of a judge at the European Court of Human Rights is higher than the annual contribution made by 15 member states. The total budget of the Court, €58.96 million in 2011, is far less than the budget of the EU Publications Office and less than a quarter of the budget of the Court of Justice of the EU, with a total of 1,230 completed and 2,284 pending cases in 2010, compared to 41,183 applications decided by the Strasbourg Court and 139,650 pending applications. The present situation is simply untenable, not to say suicidal."
The report reiterates some of the known concerns and possible solutions, such as an increased role for national parliaments to oversee national implementation of the European Court's judgments and a continuation of the Court's current poicy to prioritise the most important cases. The third key point is the report is a call on the Committee of Ministers to reinforce the interpretative authority of the Court. I reproduce here in full the conclusions of the report, which incidentally also states that the state parties to the ECHR should not be "tinkering with peripheral issues such as compulsory legal representation and the possible introduction of court fees before the Court" - A nicely phrased boomerang to the criticism that the Court should not indulge in issues peripheral to human rights. Here are the conclusions:

58. Primary responsibility for applying Convention standards lies with domestic courts and authorities; the Strasbourg Court should play a secondary role. This is embodied in the principle of subsidiarity. It is understood that states, in most instances, provide a higher level of protection than the “common European standard” guaranteed by the Court in Strasbourg, and their national authorities are accorded a certain latitude in the implementation of Convention rights, on the understanding that it is the Strasbourg Court which has the final say in cases brought before it: Articles 19, 32 and 46 of the Convention.

59. The statistics, in Strasbourg, look somewhat alarming. The stock of pending applications before the Court stands at 160,000, and the volume continues to rise by over 10% per year. The Committee of Ministers had 9,922 cases pending before it at the end of 2010. But of the pending cases, only some 13% of these were “leading” cases, i.e., those identified as revealing new systemic/structural problems requiring the adoption of new general measures. The rest, amounting to 87%, are in principle clone or repetitive cases. That said, it is it is evident, as indicated by the Court’s Registrar, that the “root problem... is simple and well known: there are too many applications coming to the Court compared to its current capacity.” Numerous attempts to reform the system in Strasbourg have not been able to ebb the overwhelming tide of new applications, diminish the Court’s backlog or, so it is claimed, to create a sustainable system that will continue to be effective in the future. In this respect, it has been argued that even Protocol No. 14 has a Assembly’s and limited, specific lifespan, being merely a tool for the temporary survival of the system while other, more appropriate solutions, are sought.

60. Two separate, and yet intertwined, issues merit priority treatment. The first concerns the need, for the Court to be given the means to regulate the filtering of applications appropriately and deal with repetitive cases (as discussed in Section 3.5 above, at paragraphs 45-51). Governmental experts should not be tinkering with peripheral issues such as compulsory legal representation and the possible introduction of court fees before the Court. The Court has taken the bold step of adopting a “priority policy” which, if implemented rigorously, will “ensure that the most serious cases and the cases which disclose the existence of widespread problems capable of generating large numbers of additional cases are dealt with more rapidly.” By taking this decision, the Court has, in effect, provided “breathing space” to those engaged in the reform process, and will permit all concerned to re-focus discussion away from the obsessive concern with the rising backlog of applications before the Court and instead grapple with problems of “persistent defaulters” in which serious human rights problems exist. The future of the Convention system is in our hands, collectively, and not only in those of the Court. It is therefore principally for member states, their executive, judicial and parliamentary authorities to guarantee the authority and long-term effectiveness of the European Convention of Human Rights.
The report also includes an extremely useful range of detailed references to the Assembly's earlier work on the issue and relevant literature and even kindly mentions this blog several times!

* Ad Hoc judges at the European Court of Human Rights: an overview.This report is a very extensive tour d'horizon of the current rules and practice on ad hoc judges, including a comparison with ad hod judges in other international judicial institutions. The footnotes include a wide range of relevant literature for those particularly interested: a good starting point for further research. And for curious readers: one of the appendices is a list of all current ad hoc judges per country.

And a third one by rapporteur György Frunda:

* An additional protocol to the European Convention on Human Rights on national minorities.The report is a renewed call, after several earlier attempts, to add a specific protocol on national minority protection to the ECHR. As the report states:

Considering the precarious situation of numerous national minority groups in Europe, the Assembly considers that it is time to reconsider its previous proposal concerning the adoption of an additional protocol to the European Convention on Human Rights, which could reinforce the standing of national minorities, both individuals and/or groups, before the European Court of Human Rights and provide them substantive and justiciable rights.

Friday, 11 November 2011

Guest Post on British ECHR Reform Plans

I am very happy to welcome another guest post of Ed Bates of the University of Southampton. This time it relates to the reform plans for the Court of the current British chairmanship of the Council of Europe:

British plans for reform of the European Court of Human Rights
The United Kingdom took over as Chair of the Committee of Ministers on 7 November 2011. It has published its ‘Priorities and Objectives’ and these include details of how the British government proposes to push forward the on-going reform of the European Court, and to strengthen the implementation of the ECHR.

Priorities and ObjectivesThe British government is seeking ‘effective and enduring solutions’ to the work overload crisis facing the Court. The call is for:

‘[1] a set of efficiency measures, which will enable the Court to focus quickly, efficiently and transparently on the most important cases that require its attention;
[2] strengthening the implementation of the Convention at national level, to ensure that national courts and authorities are able to assume their primary role in protecting human rights;
[3] measures to strengthen subsidiarity – new rules or procedures to help ensure that the Court plays a subsidiary role where member states are fulfilling their obligations under the Convention;
[4] improving the procedures for nominating suitably qualified judges to the Court, and ensuring that the Court's case law is clear and consistent’.

It is stated that the UK ‘will aim for a package of measures to be agreed by means of a Declaration at a Ministerial conference in the UK on reform of the Court’. The Declaration ‘will provide the basis of a Decision of the Committee of Ministers to be adopted at its annual meeting on 14 May 2012’.To get the ball rolling, the UK will host a conference (invitation only) at Wilton Park on a ‘2020 Vision for the European Court of Human Rights’ on 17-19 November 2011 (programme).

The UK statement adds that it ‘will aim to provide the Court with political support from the Committee of Ministers for the measures it is already taking to prioritise and better manage its workload, and to provide a wide margin of appreciation to member states’ authorities in its judgments’ (emphasis added).

Advice on reform from the (British) Commission on a Bill of RightsThe Priorities and Objectives may be read against the background of the interim advice offered by the (British) Commission on a Bill of Rights regarding reform of the Court. This body was set up by the British government earlier this year to examine the case for a British Bill of Rights, but its remit included offering advice on reform of the European Court.

As can be seen from the interim advice, the Commission called for a review of the operation of Article 41, ECHR and the Court’s role with respect to it.

It also called for a programme of fundamental reform establishing agreement ‘on appropriate objective and merit-based principles and rules, and adequate resources, for the selection of judicial candidates at the national level, and for the appointment process at the European level’. This no doubt reflects (at least partly) point 4 from the Priorities and Objectives (and see E8 of the Interlaken Declaration). Here we note that the Council of Europe has recently established an Advisory Panel of Experts to consider judicial nominations from Member States. This initiative was welcomed by the Commission, but there was also some criticism and it was suggested that the new procedure needed to go further. Incidentally, a job advert for the next ‘British’ Judge on the Court, to succeed Judge (now President) Bratza, was published recently.

The main points made by the Commission, however, corresponded to points 1 and 2 from the Priorities and Objectives as set out above. Against the background of the Court’s unmanageable workload emphasis was placed on the need for the effective application of the principle of subsidiarity and effective screening of applications. Here the Commission’s interim recommendation was for ‘an urgent programme of fundamental reform address[ing] the need to give practical effect and meaning to the essential role of the Court, by establishing a new and effective screening mechanism that allows the Court to decline to deal with cases that do not raise a serious violation of the Convention’ (compare to point 1 above as regards as the ‘most important cases that require [the Court’s] attention’).

Such a proposal endorses the approach originally found in the Evaluation Group’s Report of 2001, but which met with resistance at the time. It will be viewed as controversial by those who insist that the right of individual petition and access to the Court for well-founded human rights violations must never be curtailed in any way (on which, see the Joint Statement issued by NGOs in response to the United Kingdom’s Priorities and Objectives, at p 2).

To be clear, the proposal(s) just described is not set out in the British Priorities document, but it could come under ‘new rules or procedures’ as described in point 3. And, of course, with respect to subsidiarity, this lies at the heart of the Strasbourg jurisprudence whilst the need to strengthen this has been central to the philosophy of the Interlaken (especially ‘PP 6’ and ‘B4’)and Izmir declarations (points 5-7 and ‘B’).

It has been suggested, however, that the emphasis on subsidiarity may have another dimension to it, at least as far as the British government is concerned. And here we may also recall the comment above about British support for the Court when it affords States a ‘wide margin of appreciation’.

Subsidiarity - the (British) Attorney General’s London SpeechSuspicions were raised by a speech delivered in London by the British Attorney General, Dominic Grieve, on 24 October, when he stated that he looked forward to the British Chairmanship of the Committee of Ministers. This London speech was cautiously welcomed by some in the United Kingdom, but others expressed concern that there was something more sinister afoot. In this regard see especially the Joint NGO statement (on p 2 at paras 1-4), stressing that subsidiarity should not be a basis to ‘limit the Court’s substantive jurisdiction’ or significantly reduce its mandate to assess compliance with the ECHR.

The Attorney General’s overall point on subsidiarity was that ‘the Court [should] afford Member States a wide margin of appreciation where national parliaments have implemented Convention rights and where national courts have properly assessed the compatibility of that implementation with the Convention’.

As to the role of domestic courts, it was argued that ‘the [Strasbourg] Court should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention’. Of course, a question arises here as to who actually says what ECHR law is in the first place. Other than that I can see no problem with the Attorney General’s approach noting, of course, the proviso ‘not normally’, and, even more importantly, that the national court must have properly applied Convention principles in the first place. The approach taken by the Court in MGN v United Kingdom (2011, see para 150 especially) appears to be in keeping with the Attorney General’s proposal, and paragraph 9(a) of the Interlaken Declaration may be relevant here too.

Regarding the role of national Parliaments, however, it has been suggested that the British government’s agenda is to water down the power of European Judges and preserve greater freedom of action on the part of individual states.

In fact, the Attorney General’s points (as made in his speech) were not made at such a general level. Instead they were specifically linked to the United Kingdom’s intervention in Scoppola v Italy No. 3. That case concerned the controversial matter of whether certain convicted prisoners should be able to vote, and how any regime regulating this might be organised. The United Kingdom retains a blanket ban here, contrary to Hirst v United Kingdom (2005) and subsequent case law. In his London speech Mr Grieve was clear that:

‘… the principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation…’.
Subsidiarity as argued in Scoppola v Italy No. 3Indeed, when he appeared before the Grand Chamber on 2 November (the United Kingdom acting as a third party intervener in Scoppola v Italy No. 3– Dominic Grieve addressed the Court in person), the Attorney General argued that Hirst should be overturned. He stated that there were:

‘serious and reasonably held views within the UK (and it appears elsewhere within the Council of Europe and the broader community of nations) that individuals who commit criminal offences which are serious enough to warrant a term of imprisonment should not be permitted to participate in the democratic process, by voting, for the duration of their period of detention (or perhaps even thereafter.’
Accordingly, the issue of prisoner voting was ‘a political question - by which I mean a question for democratically elected representatives to resolve, against the background of the circumstances and political culture of their own particular state’. It was argued that it was entirely consistent with the Strasbourg jurisprudence that ‘sensitive issues of social policy of this kind should be decided by national Parliaments’. Reference was then made to the margin of appreciation doctrine:

‘The Court has frequently held that in matters of social or economic policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight, and that the Court should intervene only in those rare cases where the decision of the national authorities is "manifestly without reasonable foundation"’.

Subsidiarity and British plans for the CourtLet us put to one side the controversy associated with the fact that the British government is attempting to get Hirst (itself heard by a Chamber and a Grand Chamber) overturned and consider the general arguments put as regards the role of the Court as against national Parliaments. Do the submissions made in Scoppola and the statements made in the London speech offer an insight into some of the ‘new rules’ (point 3 of the Priorities and Objectives) that the British government would like to promote, and, assuming so, what should we make of them?

The real issue is how far the emphasis on the principle of subsidiarity may be pushed. When presented along the lines of the London speech, a key question is what the yardstick would be for assessing whether there exists strong/ reasonable opposing views, and so what areas would benefit from the type of super-irrationality review approach being advocated.

Of course, context will be everything. However, if the yardstick was whether the/ any individual national Parliament strongly opposed a change in relation to the matter in issue we would arrive at a sort of national veto on what the Court could do (at least for these special ‘social policy’ matters, however these are defined).
By contrast, if the yardstick meant that Strasbourg rulings addressing such social policy matters had to accord with a sufficient European consensus, then the implications would be less radical. After all, this was the position (broadly speaking) adopted by the minority back in Hirst, reflecting the Court’s general position. Undoubtedly, however, in a Europe of 47 nations this would reduce the Court’s capacity to signal a gentle lead on certain human rights matters, prisoner voting being a very good example. (On this see, perhaps, the dissenting judgment in S. H. and others v. Austria (3 November 2011)).

Here, of course, the burning question would be: what level of European consensus would be required? Strasbourg jurisprudence to date reveals that this depends on the context. At the very least it seems that the British wish to send a sharp reminder to Strasbourg judges that,when it comes to questions on which there is no clear European consensus,they are part of an international, not domestic constitutional court, implying limitations on their mandate - they should follow not lead.

Domestic politics in the United KingdomThere are plenty of indications that a reduction in the power and influence of Strasbourg Judges would accord with the domestic political mood in the United Kingdom. The Strasbourg Court’s stance on prisoner voting has come in for intense criticism there, and sits alongside a number of other areas of law (notably concerning immigration matters and Articles 3/ 8) that have stirred controversy and given rise to a perception that the Court has become too intrusive and too often sets uniform, European standards.

The Court has been the subject of high profile criticism on the basis that it lacks ‘constitutional legitimacy’, which was a key theme of a debate held in the House of Commons in February 2011 (a debate which was purportedly about prisoner voting, but was dominated by criticism of Strasbourg generally). And in this connection here we may return to the work of the Commission on a Bill of Rights in the UK. We learn from a separate letter published at the time of its interim advice on Court reform that there had been some debate about the Court’s ‘democratic legitimacy’.

The Commission was clearly divided here (see page 5 of the letter). However there was discussion as to whether there was a need for a ‘democratic override’ in relation to Strasbourg judgments, or if not, ‘[t]he jurisdiction of the Court should be defined in such a way as to require it to respect the proper role of democratic institutions in determining social and economic priorities’. Other members of the Commission rejected these suggestions, arguing that they were not required.

With the Court’s legitimacy under scrutiny various pieces have been written (in their personal capacity) by individuals very closely connected to it (see, for example, Judge Bratza’s recent article in the latest edition of European Human Rights Law Review, and Deputy Registrar Michael O’Boyle’s piece in the German Law Journal). It is undoubtedly the case, however, that a significant body of opinion in the United Kingdom remains hostile to the Strasbourg Court.

We therefore wait to see if there is indeed a broader agenda behind point 3 of the British government’s proposals as noted above. Are we witnessing the first steps of an attempt to institutionalise a reduction in the Court’s power of review over aspects of domestic law, and related to this, its power to interpret the Convention in ways that may give rise to incompatibilities with domestic law? Of course, whether this would be achievable politically at the European level is a different matter.

Ed Bates, University of Southampton.

(Thank you to Antoine for permitting an unusually long guest blog!).

Thursday, 10 November 2011

Paper on Draft EU to ECHR Accession Agreement

Three researchers, Xavier Groussot, Tobias Lock, and Laurent Pech, have published a commentary on the draft agreement on the Accession of the EU to the European Convention on Human Rights. The commentary is available as a policy paper on the website of the Fondation Robert Schuman. This is the abstract:

This Paper offers a legal assessment of the draft agreement on the Accession of the EU to the European Convention on Human Rights published by the Steering Committee for Human Rights of the Council of Europe on 14th October 2011. It will recall the most contentious points debated before and during the drafting of the draft accession agreement before offering a critical review of how these points were addressed by the Commission and Council of Europe's experts.

Wednesday, 9 November 2011

Book on ECHR and Fundamental Rights Interpretation

Yesterday, I attended the successful PhD defence of Hanneke Senden, a former colleague of mine (congratulations once again, Hanneke!), at Leiden University. Her book deals with the different principles and methods of fundamental rights interpretation, with a focus on the European Court of Human Rights and the the Court of Justice of the European Union. The book, entitled 'Interpretation of Fundamental Rights in a Multilevel Legal System. An analysis of the European Court of Human Rights and the Court of Justice of the European Union' has been published with Intersentia. This is the abstract:

Fundamental rights provisions are known for their relatively vague and general formulation. As a result, judges dealing with these provisions are confronted with many and often controversial interpretative choices. These interpretative choices already present judges operating in a national context with difficulties, but that is even more so for European judges operating in a multilevel context.

The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) are often criticized for delivering judgments that contain debatable choices and do not offer sufficient insight into the reasons which have led the courts to make these choices. Especially in a multilevel context where the cooperation of national authorities plays an important role as regards the effectiveness of the European courts, it is important that interpretation methods and principles are used in a transparent manner so that the reasons that justify a specific interpretative choice are clear.

This volume analyses the use of a selected number of interpretation methods and principles in the fundamental rights case law of the ECtHR and the CJEU. The use of teleological, comparative, evolutive and autonomous interpretation by the ECtHR and the CJEU are elaborately discussed on the basis of both legal theoretical literature and case law. The legal theoretical analysis provides the basis for various relevant questions, hypotheses and (analytical) suggestions, that are further studied in the subsequent case law analysis. This leads to a thorough overview of the role of these interpretation methods and principles and the possibilities for improvement.

Monday, 7 November 2011

Various News

Last week, on Friday to be precise, the new president of the European Court of Human Rights, Nicholas Bratza took up his duties, succeeding Jean-Paul Costa. See my earlier post on his election here.

Then, updates on two ECHR-related academic publications. First, Karen Bullock and Paul Johnson of the University of Surrey have published their article 'The impact of the Human Rrights Act 1998 on policing in England and Wales' in the British Journal of Criminology. This is the abstract:

This article explores the impact of the Human Rights Act (HRA) 1998 on the police service of England and Wales. It draws upon qualitative data produced during interviews with police personnel to provide the first empirical study of the influence of the HRA on the police service at an organizational level and on the day-to-day working practices of police officers. Whilst the fundamental aim of the HRA is to protect and enhance citizens’ rights and freedoms, we argue that there is
little evidence to suggest that it has promoted a greater awareness of, and respect for, human rights amongst police officers. Rather, the HRA has become institutionalized by the police service into a series of bureaucratic processes that, although requiring conformity by officers, do not encourage active consideration of human rights issues. Instead of shaping police work to make it more responsive to human rights, bureaucratic processes are used by officers to legitimize and justify their existing practices. Focusing on ‘risks’ rather than ‘rights’, officers satisfy the ‘tests’ introduced by the HRA through an assessment of the dangers posed by particular individuals and crime types and the
resource implications of effectively managing them. An important result of this is that the HRA is not used to achieve a balance between individual rights and community interests, but becomes a framework for mandating police decision making and protecting officers from criticism and blame.
Secondly, professor Laurence Burgorgue Larsen, of the University of Paris I, is twice a year publishing a chronicle on the ECHR in French, entitled 'Actualité de la Convention européenne des droits de l'homme' in the French Administrative Law Review (AJDA - Actualité Juridique - Droit Administratif). A valuable resource for French speakers to stay informed of current ECHR developments!

Thursday, 3 November 2011

New ECHR Articles

The newest 'current contents' selection (October 2011) has been put online by my colleagues here at the Netherlands Institute of Human Rights (SIM). It includes a wide selection of human rights related articles. Let me highlight the ones about the ECHR here:

The Common Market Law Review (vol. 48, no. 4, 2011) includes two articles about the European Union's future accession to the ECHR:

* J. Jacqué, The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms, p. 995-1024.
* T. Lock, Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the EU legal order, p. 1025-1054.

The Chicago-Kent Law Review (vol. 86, no. 2, 2011) features an article on jury trials:

* S. Thaman, Should criminal juries give reasons for their verdicts? The Spanish experience and the implications of the European Court of Human Rights decision in Taxquet v. Belgium, p. 613-668.

And last but not least, the European Constitutional Law Review (vol. 7, no. 2) includes an article by judge Costa:

* J., Costa, On the legitimacy of the European Court of Human Rights' judgments, pp. 173-182.

Tuesday, 1 November 2011

Update on Election of Judges

The secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has prepared a new version of the information document 'Procedure for electing judges to the European Court of Human Rights'. Apart from information (with links to the relevant documents) on how the election of judges works, it also includes a timetable for all the elections taking place next year, reproduced here:

Election foreseen in April 2012

Belgium - the term of office of the judge elected in respect of Belgium, Mrs Françoise Tulkens, expires on 12 September 2012.10

Bosnia and Herzegovina - judge in respect of Bosnia-Herzegovina, Mrs Ljiljana Mijovic, tendered her resignation, which will take effect on 1 November 2011.

Elections foreseen in June 2012

The terms of office of judges elected in respect of Croatia (Ms Nina Vajic), the Czech Republic (Mr Karel Jungwiert), Poland (Mr Lech Garlicki), the Russian Federation (Mr Anatoly Kovler), Sweden (Ms Elisabet Fura), and the United Kingdom (Sir Nicholas Bratza) expire on 31 October 2012.

The Netherlands - judge in respect of the Netherlands, Mr Egbert Myjer, tendered his resignation, effective 1 November 2012.
As one can see, no less than nine elections are to be held, with some of the most senior judges leaving the Court.

Monday, 31 October 2011

Today: Seminar on Bridging the Implementation Gap

As a very late announcement, but maybe of interest to those living in the Netherlands: The Netherlands Helsinki Committee, formerly focusing mostly on the OSCE, is today organising a seminar on implementation problems and the ECHR. It is entitled 'Bridging the Implementation Gap - Enlarging Civil Society’s Role in the European Court of Human Rights’ Implementation Process' and takes place in The Hague. This is the conference announcement:

The Netherlands Helsinki Committee (NHC) wishes to stimulate a more serious and consistent implementation of the European Court of Human Rights’ judgments with a view to help bridge 'the implementation gap'. As a civil society organisation, we will focus on the role of NGO’s in the implementation process. To start off our contribution to improved implementation we have planned a seminar entitled

- Enlarging Civil Society’s Role in the European Court of Human Rights’ Implementation Process -

to take place in The Hague on 31 October 2011. The seminar will be followed by an informal NGO meeting to discuss and adopt an NGO Action Plan on the following day. We would like to cordially invite you to attend and participate in this seminar and contribute to the adoption of the Action Plan.

When discussing the ECtHR with our partners and experts we often notice that they place more emphasis on bringing well-reasoned applications and obtaining equally well-reasoned judgments than on following up on judgments to ensure their full and effective implementation. We are of the opinion that improved implementation has a strong potential to save the ECHR protection system from asphyxiation. Civil society can play a major role in this and a larger role than it has played to date. We define full and effective implementation as taking measures relating to legislation, policy and practice that go beyond the individual case and that remedy the structural problem that is at the root of a violation.

During the seminar we will discuss activities that civil society can initiate to rise to the challenge of bridging the implementation gap. We will invite civil society organisations from across Europe, professionals working at the Council of Europe, Parliamentary Assembly politicians and academics to participate. It is our intention that the seminar serves as the starting point for a Europe-wide civil society alliance to become exceedingly actively involved in the implementation process. This alliance will follow the Action Plan that we will adopt during the informal NGO meeting on the day following the seminar.

The first part of the seminar is dedicated to the importance of implementation and the (potential) role of civil society in the implementation process from the perspective of the Parliamentary Assembly, academia and the NHC. During the second part of the seminar, we will discuss examples of good practice, such as European NGO coalitions established to follow-up on a judgment, examples of structural non-implementation and formal and informal ways to press for implementation available to civil society. You are warmly invited to share your thoughts on this and tell us about initiatives of your organisation during this interactive and rather informal part of the seminar. At the end of the day, we will start brainstorming about an Action Plan and present our preliminary conclusions.

Friday, 28 October 2011

Article on Same-Sex Partners and ECHR

The Child and Family Law Quarterly (vol. 23, No. 1) includes an article entitled 'Families But Not (Yet) Marriages? Same-Sex Partners and the Developing European Convention ‘Margin of Appreciation’ by Nicholas Bamforth of the University of Oxford. This is the abstract:

This commentary examines two recent decisions of the First Section Chamber of the European Court of Human Rights, namely Schalk and Kopf v Austria and P.B. and J.S. v Austria. Both are significant in accepting that same-sex partnerships may fall within the ‘protection of family life’ limb of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, but Schalk and Kopf rejects the notion that Convention signatory states are required under Article 12 to admit same-sex couples to the right to marry, and declines to determine whether any minimal level of legal protection must be offered under Article 8. Both decisions highlight the central role currently played by the ‘margin of appreciation’ in this area.

Thursday, 27 October 2011

Guide on Admissibility Criteria Translated

The Courts' Practical Guide on Admissibility Criteria, launched at the end of last year, already existed in the Court's working languages English and French. This week, the Guide has been made available in Italian, German, Greek and Bulgarian. Hopefully, up-to-date Russian, Romanian and Turkish translations will follow soon in order to enable access by lawyers from the states from which most applications stem. One may note that the small Principality of Liechtenstein, not really the biggest problem-maker for the Court, has paid for the German translation! Austrian and German lawyers will be grateful.

Friday, 21 October 2011

Report on ECHR and Cypriot Property Issues

The PRIO Cyprus Centre, the Cypriotic branch of the Peace Research Institute Oslo, has published an online report with recommendations on how to move forward in the Cyprus property issue. The report was written by Rhodri Williams, a forced displacement and property restitution expert, and Ayla Gürel, a research consultant at PRIO. It is entitled 'The European Court of Human Rights and the Cyprus Property Issue Charting a way forward'. The report clearly lays bare the ways in which political actors from both sides have used the Court's judgments and it shows convincingly how nuanced the Court's judgments and decisions are, especially the more recent ones. Well worth reading for anyone interested in either property rights or Cyprus! This is the summary:

Since 1995, the European Court of Human Rights has frequently ruled on property claims arising due to the Cyprus problem. Taken as a whole, the resulting judgments have served to establish parameters that should inform any viable resolution of the Cyprus property issue.

The Court’s rulings are not meant to resolve the property issue. However, they do effectively define a set of objective legal norms that any negotiated solution compatible with the European Convention on Human Rights would be expected to satisfy.

The agreed objective of the ongoing Cyprus negotiations is reunification on a bizonal basis. The italicized terms represent a compromise between competing visions of an appropriate Cyprus solution: the Greek Cypriots have long favoured a unitary state while the Turkish Cypriots have typically sought to maintain the distinctive identity of their numerically smaller community. These visions, which would need to be reconciled in any viable solution to the Cyprus problem, are rooted in the two communities’ contradictory perceptions of the post-1974 split.

In this context, the Court’s judgments do no more – and no less – than to exclude the more extreme aspects of the proposals that have been put forward by the two sides. As a result these judgments delineate only the outer parameters of an acceptable solution. Within these parameters there remains much space for political negotiations to arrive at a mutually acceptable compromise.

Thursday, 20 October 2011

Country Profiles on the Court's Website

This week the European Court of Human Rights took a new step in making its activities more known. The website of the Court now includes country profiles about all state parties to the ECHR. The profiles include a list of previous and current judges in respect of the country concerned, the country's contribution to the Court's budget and registry (the number of persons of a certain nationality working there), a list of the most important cases, information about the most noteworthy pending cases and a statistical overview of cases for the period 2008-2011 per country. A good way to get a quick overview of the most important human rights problems per country.

Wednesday, 19 October 2011

Newest Issue of German Law Journal dedicated to ECHR

The newest issue of the respected online German Law Journal (vol 12. No. 10, 2011) is entirely dedicated to ECHR issues. The articles are based on papers presented at University College Dublin in April of this year at a conference entitled "The Legacy and Future of the European Court of Human Rights". This collection of articles was edited by Kanstantsin Dzehtsiarou and Alan Green of UCD and focuses on legitimacy issues amongst others. These are the articles included:

* Legitimacy and the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners, Kanstantsin Dzehtsiarou & Alan Greene

* The European Court of Human Rights: Yesterday, Today and Tomorrow, Mr. Justice John Hedigan

* European Consensus and the Evolutive Interpretation of the European Convention on Human Rights, Kanstantsin Dzehtsiarou

* Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights’ Jurisprudence on LGBT Rights, Sarah Lucy Cooper

* Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights, Alan Greene

* Dismantling the Iron-Cage: the Discursive Persistence and Legal Failure of a “Bureaucratic Rational” Construction of the Admissibility Decision-Making of the European Court of Human Rights, Andrew Tickell

* “A More Secure Europe of Rights?” The European Court of Human Rights, the Court of Justice of the European Union and EU Accession to the ECHR, Noreen O’Meara

* The ECHR, the EU and the Weakness of Social Rights Protection at European Level, Roderic O’Gorman

* The Future of the European Court of Human Rights, Michael O’Boyle

Tuesday, 18 October 2011

Article on Islam, Secularism and the ECHR

The newest issue of the Michigan Journal of International Law (vol. 32-4, 2011) includes an article on the ECHR, entitled 'Islam in the Secular Nomos of the European Court of Human Rights' written by Peter G. Danchin of the University of Maryland. sine it contains no abstracts, this is the table of contents for your information:


I. The Concept of the Secular Public Sphere
A. The Antinomies of Secularism
1. The Right to Freedom of Religion and Belief
2. Public Reason and Private Faith
3. The Authority of Public Reason
B. Rethinking the Secular
C. Between Rationality and Reason

II. Religious Freedom in ECHR Jurisprudence
A. The Rights of Religious Minorities
B. Freedom from Injury to Religious Feelings
C. The Claims of Muslim Communities

III. Islam in Article 9 Jurisprudence
A. The Scope of the Right to Religious Freedom
1. Enlightenment Rationalism
2. Value Pluralism
3. Pluralism and Islam
B. Public Order and the Rights of Others
1. Rival Enlightenments
2. From Blasphemy to Incitement to Religious Hatred
C. Is “Secularism” Necessary in a Democratic Society?


Monday, 17 October 2011

New Academic Articles on the ECHR in French

The newest issue of the Revue trimestrielle des droits de l'homme has been published (No. 88, October 2011). It includes the following ECHR-related articles:

* Dean Spielmann, La reconnaissance et l’exécution des décisions judiciaires étrangères et les exigences de la Convention européenne des droits de l’homme : Un essai de synthèse.
* Frédéric Vanneste, Droit international général et droit international des droits de l’homme : l’apport de la Cour européenne des droits de l’homme.
* Rodolphe Mésa, Les mesures de sûreté post sententiam privatives et restrictives de liberté dans le droit de la Convention européenne des droits de l’homme.
* Elisabeth Lambert-Abdelgawad, L’exécution des arrêts de la Cour européenne des droits de l’homme (2010).
* Michel Puéchavy, La difficile conciliation de l’oralité des débats avec le respect du principe du contradictoire (obs/s. Cour eur. dr. h., Labbé c. France, 12 octobre 2010).
* Amandine Philippart de Foy, La provocation policière devant la Cour européenne des droits de l'homme (obs/s. Cour eur. dr. h., Bannikova c. Russie, 4 novembre 2010).
* Jean-Pierre Marguénaud, Le nom du couple binational devant la Cour européenne des droits de l'homme (obs/s. Cour eur. dr. h., Losonci Rose et Rose c. Suisse, 9 novembre 2010).
* Aurélien Antoine, Quand Naomi Campbell fait la une… du droit de la Convention européenne des droits de l’homme (obs/s. Cour eur. dr. h., MGN Limited c. Royaume-Uni, 18 janvier 2011).
* Cédric Raux, La politique d’asile de l’union européenne dans le viseur de la Cour européenne des droits de l’homme (obs/s. Cour eur. dr. h., M.S.S. c. Belgique et Grèce, 21 janvier 2011).

Friday, 14 October 2011

More Administrative Autonomy for the Court

Earlier this week, the Committee of Ministers of the Council of Europe adopted resolution CM/Res(2011)9, which amends the Staff Regulations with regard to delegation of staff management powers to the Registrar of the European Court of Human Rights. The resolution enables the delegation of certain administrative powers from the Secretary General of the Council of Europe to the Registrar. This fits in the Interlaken process which is aimed at making the Court mroe efficient. More administrative autonomy is one way of doing so. Since the resolution is relatively short, I reproduce it here in full:

The Committee of Ministers, in accordance with Article 16 of the Statute of Council of Europe,

Having regard to Articles 36, paragraph c, and 37, paragraph b, of the Statute of the Council of Europe;

Having regard to Article 24, paragraph 1, of the European Convention on Human Rights and Rule 17, paragraph 1, of the Rules of Court;

Having regard to the Staff Regulations and Appendices thereto;

Having regard to the decisions taken at the High-level Conference on the Future of the European Court of Human Rights (Interlaken, 18-19 February 2010) and notably point 8 (b) of the Action Plan adopted at that conference, which calls upon States Parties and the Council of Europe to grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe;

Bearing in mind the need to preserve the institutional coherence and integrity of the Council of Europe as a whole;

Considering it necessary to accord the Court an appropriate level of administrative autonomy in staff matters;

Considering that Articles 36, paragraph c, and 37, paragraph b, of the Statute of the Council of Europe do not preclude a delegation of decision-making authority in staff related matters in the name and on behalf of the Secretary General;

On a proposal by the Secretary General, who has consulted the Staff Committee under Article 6, paragraph 1, of the Regulations on staff participation (Appendix I to the Staff Regulations),

Resolves as follows:

Article 1The last sentence of paragraph 2 of Article 59 of the Staff Regulations shall henceforth read as follows:

“The expression “administrative act” shall mean any individual or general decision or measure taken by the Secretary General or any official acting by delegation from the Secretary General.”

Article 2An article entitled “Article 61bis – Decisions relating to the Registry of the European Court of Human Rights” and worded as follows shall be added before Article 62 at the beginning of Part VIII: Final provisions of the Staff Regulations:

“1. By delegation from the Secretary General, the Registrar of the European Court of Human Rights shall take decisions relating to the Registry under the following provisions of these Regulations and Appendices hereto:

a. Article 3, paragraph 2

b. Articles 11 and 13, Article 21 and Article 22bis, paragraphs 1 to 3bis. For the purpose of Article 22bis, paragraph 1, the Deputy Registrars shall have the competence of Head of Major Administrative Entity

c. Article 25, paragraph 2, Article 26 with regard to facts and information concerning the Court, Article 27, paragraphs 1 and 2, with regard to the work of the Court, Article 28 with regard to information concerning the Court, and Articles 32 to 36

d. Article 52

e. Articles 54, 56 and 57 to the extent the alleged disciplinary offence concerns the substantive work of the Court

f. Appendix II: Regulations on appointments

i. Article 3

ii. Article 5, paragraphs 1 and 2. For the purpose of paragraph 1bis, the Deputy Registrars shall have the competence of Head of Major Administrative Entity

iii. Articles 6 and 7

iv. Article 15

v. Article 16, paragraphs 2 to 5

vi. Articles 17 and 18

vii. Article 21, paragraphs 1 to 4

viii. Article 24, paragraphs 1 to 14 and 16. The application of Article 24, paragraphs 2, 7, 10 and 13, shall be without prejudice to the Secretary General’s power to set out, in a Rule, conditions for granting additional steps to candidates with more extensive professional experience

ix. Article 25, paragraphs 1, 2, 5a and 5b, with regard to appointment to grade A6

x. Articles 28 and 29

a. Article 13 of Appendix IV: Regulations governing staff salaries and allowances

b. Appendix VII: Regulations on unpaid leave, with the exception of Article 6, paragraph 1

c. Appendix VIII: Regulations on extra duties and night work

d. Appendix IX: Regulations on part-time work, with the exception of Article 9, paragraph 3

e. Appendix X: Regulations on disciplinary proceedings to the extent the alleged disciplinary offence concerns the substantive work of the Court

2. The authority exercised by the Secretary General under Article 2 of these regulations with regard to the Registry shall have regard to paragraph 1 above.

3. The Registrar shall take the decisions referred to in paragraph 1 above in conformity with these regulations and appendices hereto and any implementing provisions issued by the Secretary General in accordance with these regulations and appendices hereto. The Secretary General shall inform the Registrar of any complaint under Article 59 of these regulations relating to such decisions

4. For the purposes of application of paragraph 1 above, the recommendations of the Appointments Board under the provisions of Article 9, Article 12, Article 13, Article 14, Article 16, paragraph 1, and Article 20 of Appendix II of Regulations on Appointments, shall be made to the Registrar.”

Article 3An article entitled “Article 61ter – Regrading of posts at the Registry of the European Court of Human Rights” and worded as follows shall be added after Article 61bis of the Staff Regulations: “With respect to the regrading of posts at the Registry of the European Court of Human Rights, the Secretary General shall exercise the powers provided in Article 2, paragraph 5, of Appendix III: Regulations on the table of posts, with the agreement of the Registrar, except where, in the context of an overall job classification review, the Secretary General exercises this power in a way which affects posts in all sectors and Major Administrative Entities of the Council of Europe.”

Article 4A paragraph 1bis shall be inserted after paragraph 1 of Article 21bis of the Regulations on Appointments (Appendix II to the Staff Regulations) and worded as follows: “The provisions of paragraph 1 do not apply to staff members carrying out their duties at the Registry of the European Court of Human Rights.”

Article 5Article 26, paragraph 2, indent a, of the Regulations on Appointments (Appendix II to the Staff Regulations) shall be deleted.

Article 6This resolution shall enter into force on 1 January 2012.he

Thursday, 13 October 2011

New Book on Positive Obligations and the ECHR

A new book has been published with Routledge by Dimitris Xenos (of the European Public Law Organisation in Athens)entitled 'The Positive Obligations of the State under the European Convention of Human Rights'. This is the abstract:

The system of the European Convention of Human Rights imposes positive obligations on the state to guarantee human rights in circumstances where state agents do not directly interfere. In addition to the traditional/liberal negative obligation of non-interference, the state must actively protect the human rights of individuals residing within its jurisdiction. The liability of the state in terms of positive obligations induces a freestanding imperative of human rights that changes fundamentally the perception of the role of the state and the participatory ability of the individual, who can now assert their human rights in all circumstances in which they are relevant. In that regard, positive obligations herald the most advanced review of the state’s business ever attempted in international law.

The book undertakes a comprehensive study of positive obligations: from establishing the legitimacy of positive obligations within the system of the Convention to their practical implementation at the national level. Analysing in depth legal principles that pervade the whole system of the Convention, a coherent methodological framework of critical stages and parameters is provided to determine the content of positive obligations in a consistent, predictable and realistic manner.

This study of the Convention explains and critically analyses the state’s positive obligations, as imposed by the European Court of Human Rights, and sets out original proposals for their future development. The book will be of interest to those who study, research or practice public law, civil rights and liberties or international/European human rights law.

Wednesday, 12 October 2011

Trying it Twice

Rare are the cases in which applicants win their case in Strasbourg and then return to Strasbourg and again win a case when they are not satisfied with the way the state handles the outcome. This happened in this week's judgment in the case of Emre v. Switzerland (No. 2) . Emre is a Turkish national who had been living in Switzerland from the age of six. In his late teens and early twenties, he was convicted for a range of offences, including robbery and assault. As a result, he was expulsed and an indefinite ban on re-entry was pronounced by domestic courts in Switzerland. Emre lodged a complaint with the European Court of Human Rights, arguing that this violated his right to private andd family life (Article 8 ECHR). In August 2008, the Court held in its first judgment on the situation that this was indeed the case. Indicating in detail a wide range of factors (nature of the offences, severity of the penalties, strength of his ties with Switzerland and Turkey, among others) to be taken into account, it concluded that the Swiss authorities had not struck a fair balance. To their credit, the Swiss courts subsequently re-assessed the case and came to a new conclusion: the ban would now be for ten years instead of indefinitely. Arguing that this new judicial assessment constituted a new violation of his rights, Emre went to Strasbourg again.

The question then presented itself not only whether the new, shorter ban constituted a violation of Article 8 but also whethwer the previous judgment of Switzerland had been complied with (the obligation of Article 46 ECHR). The Court dealt with these two issues in conjunction. It assessed that the ten year ban did not comply with the conclusions and spirit of its own 2008 judgment. It held that the Swiss domestic court (le Tribunal fédéral) had subsituted the Court's balancing of interests by its own. Even if one would suppose, the Court went on to ascertain, that such a thing would be admissible, such renewed balancing should be complete and convincing in dealing with all the relevant factors the Court had identified. The Swiss court had, in the European Court's view, mainly focused on the element of unlimited duration at the detriment of other factors. Ten years was still disproportionate, in the Court's eyes.

And then, in a rather far-reaching conclusion, the Court held the following (in para. 75):

"l’exécution la plus naturelle de l’arrêt de la Cour, et celle qui correspond le plus à la restitutio in integrum, aurait été d’annuler purement et simplement, et avec effet immédiat, l’interdiction de territoire contre le requérant. A supposer même qu’un autre résultat aurait pu être acceptable, la Cour estime que la nature obligatoire des arrêts au sens de l’article 46 § 1 et l’importance de leur exécution effective, de bonne foi et compatible avec les « conclusions et l’esprit » de l’arrêt auraient commandé, dans les circonstances concrètes de l’affaire, un examen plus complet des considérations du premier arrêt de la Cour."
Thus, the most "natural interpretation" (whatever that may mean in legal terms) and the one closest to restitutio in integrum would have been to annul immediately and completely the ban. And even if another result (a shorter ban) would have been acceptable, a good faith execution of the Strasbourg judgment by Switzerland would have necessitated a more complete application of the considerations in the first judgment of the European Court in this case.

What does this tell us? That is not easy to answer. The Court leaves the door slightly open for a state's own assessment, as long as it scrupulously applies all considerations indicated by the Court, or in the alternative the more "natural" solution is one which is as close as possible to restitutio in integrum. Is this another step towards more specific application of the Court's judgments? It certainly requires taking all the pointers the Court gives when finding a violation very seriously, even if no precise indication is given in the operative part of the judgment under Article 46 ECHR. The judgment shows that in this case the most beneficial solution for the applicant should have been chosen if the state was not prepared to be procedurally thorough enough to work in a convincing and complete way with all the Court's yardsticks. The more obedient the state is procedurally (following the Court's criteria), the more the Court is prepared to give leeway on the material assessment (the actual outcome of the balancing), it may seem. How this would apply to other situations than re-entry bans, and to situations covering other articles than 8 ECHR, remains to be seen ...

Judges Malinverni (the judge elected in respect of Switzerland, now succeeded by Helen Keller) and Björgvinsson dissented, arguing that under Article 46 ECHR states have the liberty to chose the way in which they implement the Court's judgments, especially - as in this case - when the judgment did not indicate specific measures to be taken. The renewed assessment by domestic courts, in their view, fell within the margin of appreciation.

The judgment itself is in French but the press release in English can be found here.