Friday, 21 December 2012

Christmas Break

Dear readers, this blog and its author are taking a Christmas break. I wish all of you a very good holiday season. May 2013 be a year with lots of interesting new development in ECHR jurisprudence, but even more importantly with a better protection of human rights in Europe and across the globe! I also express the hope that you will continue sending all your information on new ECHR-related publications and events and guest posts.

Please note: the Netherlands Institute of Human Rights SIM is moving to new premises in the coming weeks. Our new address as of January will be: Achter Sint Pieter 200, 3512 HT Utrecht, the Netherlands.

Merry Christmas!

Wednesday, 19 December 2012

Conference on ECtHR and ECJ

Oxford Brookes University is organising a conference on Europe's two main Courts: the European Court of Human Rights and the European Court of Justice. The conference will be held on 18 January and is entitled 'Fundamental Rights In Europe: A Matter For Two Courts'. This is the description:

The aim of this workshop is to bring together scholars, judges and policy makers to discuss the legal framework for the protection of fundamental rights in Europe. This event will reflect on the relationship between the Court of Justice of the EU (CJEU) in Luxembourg and the European Court of Human Rights (ECtHR) in Strasbourg. It will examine the current state of accession of the European Union to the European Convention on Human Rights (ECHR) and consider the legal implications of the accession for the protection of the fundamental rights of EU and non-EU citizens. It will explore this theme from a number of different angles and as such it is divided into four main streams: employment rights, citizenship and migration, fundamental rights versus fundamental freedoms and access to justice.

The following themes will be explored:

a. Overview of the EU law and policy aiming at legal integration based on rights;

b. Analysis of legal implication s of the EU Charter, the EU accession agreement and the ECRH in relation to: employment law, citizenship and migration and trade in Europe; analysis of the ECHR and ECJ case law in the respective areas;

c. Evaluation of the relationship between the ECJ and the ECtHR and their mechanisms;

d. Examination of the interplay between EU, ECHR and national level: the extent to which the EU/ECHR fundamental rights’ caveat sits with simultaneous developments in strategies/law and policies at national levels;

e. Analysis of the effects/ impacts of the different laws/policies on the lives of EU citizens/residents, and the potential discrepancy between formal rights and the actual ability of people to enjoy these;

f. Legal implication in relation to the EU Draft Accession Agreement to the ECHR

The morning plenary session will be followed by four parallel afternoon sessions and a final round table.

Speakers include:

■ Mr Niilo Jaaskinen, Court of Justice of the European Union (Advocate General)

■ Ms Kristi Raba, Council of the European Union

■ Mr Joerg Polakiewicz, Human Rights Law and Policy Division, Council of Europe

■ Professor Paul Craig, University of Oxford

■ Professor Stephen Weatherill, University of Oxford

■ Professor Titia Loenen, Utrecht University

■ Judge Dragoljub Popović, European Court of Human Rights

You can register here.

Thursday, 13 December 2012

New Book on Diversity and the ECHR

Professor Eva Brems of Ghent University, who leads one of the largest current ECHR-research projects in Europe with a very talented 'crew' of researchers, has compiled a book on diversity issues within the jurisprudence of the European Court. The approach of the book is original and innovative, as the contributors were asked to focus on one specific judgment of the Court and to make suggestions for a rewriting of that judgment. It is entitled 'Diversity and European Human Rights. Rewriting Judgments of the ECHR' and was published by Cambridge University Press. This is the abstract:

Through redrafting the judgments of the ECHR, Diversity and European Human Rights demonstrates how the court could improve the mainstreaming of diversity in its judgments. Eighteen judgments are considered and rewritten to reflect the concerns of women, children, LGB persons, ethnic and religious minorities and persons with disabilities in turn. Each redrafted judgment is accompanied by a paper outlining the theoretical concepts and frameworks that guided the approaches of the authors and explaining how each amendment to the original text is an improvement. Simultaneously, the authors demonstrate how difficult it can be to translate ideas into judgments, whilst also providing examples of what those ideas would look like in judicial language. By rewriting actual judicial decisions in a wide range of topics this book offers a broad overview of diversity issues in the jurisprudence of the ECHR and aims to bridge the gap between academic analysis and judicial practice.
And this is the table of contents:

Introduction Eva Brems; Part I. Children: 1. Rewriting V v. the United Kingdom: building on a groundbreaking standard Ursula Kilkelly; 2. Images of children in education: a critical reading of D. H. and Others v. The Czech Republic Sia Spiliopoulou Åkermark; 3. Mainstreaming children's rights in migration litigation: Muskhadzhiyeva and Others v. Belgium Wouter Vandenhole and Julie Ryngaert; Part II. Gender: 4. Redrafting abortion rights under the Convention: A, B and C v. Ireland Patricia Londono; 5. A noble cause: a case study of discrimination, symbols and reciprocity Yofi Tirosh; 6. From inclusion to transformation: rewriting Konstantin Markin v. Russia Alexandra Timmer; Part III. Religious Minorities: 7. Rethinking Deschomets v. France: reinforcing the protection of religious liberty through personal autonomy in custody disputes Renata Uitz; 8. Mainstreaming religious diversity in a secular and egalitarian state: the road(s) not taken in Leyla Sahin v. Turkey Pierre Bosset; 9. Suku Phull v. France rewritten from a procedural justice perspective: taking religious minorities seriously Saïla Ouald Chaib; Part IV. Sexual Minorities: 10. Rewriting Schalk and Kopf: shifting the locus of deference Holning S. Lau; 11. The burden of conjugality Aeyal Gross; 12. The public faces of privacy: rewriting Lustig-Prean and Beckett v. the United Kingdom Michael Kavey; Part V. Disability: 13. Unravelling the knot: Article 8, private life, positive duties and disability: rewriting Sentges v. The Netherlands Lisa Waddington; 14. Re-thinking Herczegfalvy: the Convention and the control of psychiatric treatment Peter Bartlett; 15. Rewriting Kolanis v. the United Kingdom: the right to community integration Maris Burbergs; Part VI. Cultural Minorities: 16. Minority marriage and discrimination: redrafting Muñoz Díaz v. Spain Eduardo J. Ruiz Vieytez; 17. Chapman redux: the European Court of Human Rights and Roma traditional lifestyle Julie Ringelheim; 18. Erasing Q, W and X, erasing cultural difference Lourdes Peroni.
Congratulations, Eva!

Tuesday, 11 December 2012

Musings of a Former Judge

With yesterday's post about translations into many languages in mind, I dare to post for once a publication in one of Europe's smaller languages, Dutch (also my own incidentally). At the occasion of his retirement from the European Court of Human Rights, a compilation of his own writings was presented to the former judge in respect of the Netherlands, Egbert Myjer. The book, entitled 'Straatsburgse Myj/meringen' (the best translation is probably 'Musings from
Strasbourg', although the wordplay with his name is impossible to translate) includes the many short articles he wrote for the Dutch human rights review (Nederlands Tijdschrift voor de Mensenrechten) in the course of his years in Strasbourg. With his well-known knack for irony and pithy statements, the short articles give an insight into the many aspects of the Court's practice that do not usually surface in academic literature.

Monday, 10 December 2012

Court Information in Many More Languages

The Court is continuing to expand its translations of key publications for potential applicants and the general public. Currently, the “Questions & Answers”, “The ECHR in 50 Questions”, and the leaflet “The Court in brief”, have been translated into the official languages of Council of Europe member States. At the moment, 139 new documents, in 39 languages, have been published online and more are to follow. A dozen new language versions of the video-clip on the Court have also been released (see here). According to the Court, more language versions of these publications and videos will be released in the coming weeks, including in Chinese, Japanese, and Arabic.

For the available materials, see this part of the Court's website.

Friday, 7 December 2012

Book on European Court in the Post-Cold War Era

Dr James Sweeney of the University of Durham has written a very interesting monograph on the intersection of the universality of human rights and the specifics of transitional justice, with the European Court as its case study. The book, entitled 'The European Court of Human Rights in the Post-Cold War Era: Universality in Transition', was published last week with Routledge. This is the abstract:

The European Court of Human Rights in the Post-Cold War Era: Universality in Transition examines transitional justice from the perspective of its impact on the universality of human rights, taking the jurisprudence of the European Court of Human Rights as its detailed case study. The problem is twofold: there are questions about differences in human rights standards between transitional and non-transitional situations, and about differences between transitions.

The European Court has been a vital part of European democratic consolidation and integration for over half a century, setting meaningful standards and offering legal remedies to the individually repressed, the politically vulnerable, and the socially excluded. After their emancipation from Soviet influence in the 1990s, and with membership of the European Union in mind for many, the new democracies of Central and Eastern Europe flocked to the Convention system. The voluminous jurisprudence of the European Court of Human Rights can now give us some clear information about how an international human rights law regime can interact with transitional justice. The jurisprudence is divided between those cases concerning the human rights implications of explicitly transitional policies (such as lustration), and those that involve impacts upon specific democratic rights during the transition. The book presents a close examination of claims by states that transitional policies and priorities require a level of deference from the Strasbourg institutions. The book proposes that states’ claims for leeway from international human rights supervisory mechanisms during times of transition can be characterised not as arguments for cultural relativism, but for ‘transitional relativism’.
Congratulations, James!

Thursday, 6 December 2012

Deportation of Children Judgment

It is my pleasure to have a guest blog today by dr Maarten den Heijer, former colleague and a specialist in European migration law. He has been so kind to comment on the judgment of Butt v Norway, delivered by the Court earlier this week:

Court prohibits deportation of Pakistani siblings from Norway

Coincidentally or not, a series of complaints in recent years against Norway has allowed the European Court of Human Rights to flesh out the principles that apply to the expulsion of families that have acted fraudulently in obtaining a residence status. One key issue in this type of cases is the question whether fraudulent conduct of the parents (but also the simple refusal to leave the country despite an order to do so) should also be attributed to the children, who in the meantime may have developed strong ties with the host country. In the Court’s latest judgment on the issue in Butt v Norway, the Court clarifies that it is generally allowed to equate the residence status of a child with that of the parent, but it also stresses that the independent interests of children warrant serious examination and that the moment at which a child learns that his status is precarious, is relevant in taking a decision on expulsion.

The applicants were brother and sister Johangir Abbas and Fozia Butt, Pakistani nationals who were born in 1985 and 1986 respectively and live in Oslo. They arrived in Norway in 1989 with their mother and were granted a residence permit on humanitarian grounds. In 1999 their permits were withdrawn however because their mother had failed to disclose to the immigration authorities that the family had left Norway and returned to Pakistan from 1992 to 1996. Their mother went into hiding in 2000-2001, was expelled from Norway in 2005 and died in Pakistan in 2007. The siblings were living with their aunt and uncle who were legally resident in Norway.

In comparable cases, the Court normally stresses that not much weight can be accorded to ties with the host country that have developed whilst it was known that the prospects of future residence are precarious (e.g. Omoregie v Norway; Antwi v Norway). In Nunez v Norway however, the Court added that children should not always suffer the negative consequences of fraudulent conduct of a mother and that the authorities should always examine the effects an expulsion has on the possibilities of children to enjoy private and/or family life as protected by Article 8 ECHR. The Court considered that ‘exceptional circumstances’ may make it necessary to accord primacy to the interests of the children – even if that would imply that a parent must be allowed residence as well.

The Court further develops this reasoning in Butt. In determining whether ‘exceptional circumstances’ are present, the Court makes several interesting points. The first is that it agrees with the approach of the Norwegian court that a general migration policy approach is allowed “of identifying children with the conduct of the parents”, i.e. of imputing fraudulent conduct of the parents also to the children. The Norwegian court had stressed the importance of this approach, for otherwise there would be a great risk that parents would exploit the situation of the children to secure a residence permit. But the Court adds that in this case there was no such risk of exploitation, since the mother had already died and could therefore not benefit from any decision taken in respect of the children. Consequently, less weight is to be accorded to general interests of immigration policy.

A novel and particularly significant consideration of the Court is its finding that the strong ties of the Butt siblings with Norway had already been formed before they became aware of their mother’s fraudulent conduct. They cannot therefore, in the opinion of the Court, until that moment be reproached for having stayed in Norway knowing that their stay was legally precarious. This implies that more weight is to be accorded to protecting the ties the siblings have established with Norway. Further, as in Nunez, the Court notes the delays on the part of Norway to decide upon deportation of the siblings, which puts into question the pressing character of immigration considerations as to their removal. Balancing all relevant interests at issue (the Court notes furthermore the relatively minor offences committed by the brother that had also been advanced by Norway as justification for expulsion), the Court concludes that Norway would overstep its margin of appreciation if it would deport the siblings.

The Court’s focus on the moment at which children become aware of their irregular residence status may have considerable ramifications, as one may expect especially younger children to often be ignorant about their status or possible abuse or fraud of their parents. It will be very interesting to see whether the Court will in future cases indeed accord full weight to ties built up with the host State before the precarious status became known to the child. If such ties are to be taken more seriously than previously thought, immigration authorities may well be forced to widen up substantially the ‘exceptional circumstances’-formula that the Court first laid down in Nunez.

Maarten den Heijer, assistant professor of international law, University of Amsterdam

Wednesday, 5 December 2012

New Academic Articles on the Convention

The newest 'Current Contents Selection' of my home base SIM has been put online. It includes the following ECHR-related articles (I am only mentioning the ones I did not refer to before on this blog). First off, the Cambridge Law Journal (vol. 71, no. 3, 2012) contains two articles about Strasbourg:

* D. Mead, 'Kettling comes to the boil before the Strasbourg Court: is it deprivation of liberty to contain protesters en masse?', pp. 472-475.
* C. Simmonds, 'Paramountcy and the ECHR: a conflict resolved?' pp. 498-501.
Other articles are:

* K. Henrard, 'Duties of reasonable accommodation in relation to religion and the European Court of Human Rights: a closer look at the prohibition of discrimination, the freedom of religion and related duties of state neutrality', Erasmus Law Review, vol. 5, no. 1 (2012). This is the abstract:

This article aims to answer the question of whether duties of reasonable accommodation on the basis of religion can and should be identified by the European Court of Human Rights. Throughout the article, it is emphasised that duties of reasonable accommodation are ultimately about realising equal opportunities and thus substantive equality by levelling out the playing field and evening out barriers to full participation. Duties of differential treatment under the prohibition of discrimination and the prohibition of indirect discrimination are both general in application and, arguably, provide a solid basis for duties of reasonable accommodation, including those relating to religion. Consequently, it is argued that identifying these duties of reasonable accommodation would seem to be a logical development of the Court’s jurisprudence. It will be argued that the potential tension with the prohibition of discrimination (regarding those that cannot benefit from the accommodation measures) can be solved when an asymmetrical approach to the scrutiny of suspect grounds is adopted. Similarly, the apparent conflict with duties of state neutrality under the freedom of religion disappears when an inclusive vision of state neutrality is followed. When reasonable accommodation measures trigger controversies, this should be countered by awareness raising about the intrinsic connection of reasonable accommodation measures with substantive equality.

* P. Thielbörger, 'Judicial passivism at the European Court of Human Rights', Maastricht Journal of European and Comparative Law, vol. 19, no. 3 (2012) pp. 341-347.
  * C. Guthrie, 'Scottish limitations to testamentary freedom and freedom of religion under Article 9 ECHR',
Aberdeen Student Law Review, vol. 3 (2012) pp. 78-99. This is the abstract:

The writing of a Will may be regarded as an action in life carrying with it the reasonable expectation that its contents will be adhered to. Whilst, in general, anybody with the capacity to do so may leave a Will distributing the entire or part of his estate as a mortis causa trust on his death, testamentary freedom in Scotland is subject to certain limitations. Some manifestations of religious belief require specific observances on death which could be prevented by these limitations. Three such limitations to testamentary freedom, namely restrictions arising from the concept of legal rights, immoral Will conditions and the regulations surrounding the disposal of the corpse, have the capacity to affect directly the freedom to manifest religion which is protected under Art.9(1) of the ECHR. This paper will contend that whilst limits to testamentary freedom may interfere with the freedom to manifest religious belief, such restrictions are justifiable under Art.9(2) of the ECHR. It is, therefore, concluded that while interference may occur, the three limitations to testamentary freedom do not contravene Art.9 of the ECHR.

Wednesday, 28 November 2012

Court's Guide to Case-Law per Article

This week, the European Court of Human Rights started to publish a new series of studies on its jurisprudence relating to specific Articles of the ECHR, the so-called Guide to Case-law. Another addition to its range of informative tools about the Convention - next to the information notes, fact sheets, the admissibility guide and the research reports.

The first guide, on the right to liberty in Article 5 ECHR has been put online. With a length of almost 40 pages, this is a very detailed overview - handily put in systematic sections focusing on the different parts and terms of Article 5. Direct hyperlinks to the relevant case-law are provided throughout the text. The Court has announced that similar guides on other Convention articles will follow soon. The more this collection will continue to grow, the more competition it will be for traditional ECHR handbooks, since this series is very up-to-date and comes from within the Court itself.

Monday, 26 November 2012

Joint NGO Statement on Draft Protocols 15 and 16

A group of European human rights NGOs has published a Joint Comment on the drafting of Protocols 15 and 16 to the European Convention, about which I reported previously here. The NGOs are critical about some proposed aspects (such as the singling out of the margin of appreciation instead of the mentioning of a whole number of relevant key principles) and give a number of recommendations. This is the text:

Joint NGO comments on the drafting of Protocols 15 and 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms

Following the outcome of the discussions within the DH-GDR and in view of the 76th meeting of the Steering Committee for Human Rights, Amnesty International, the AIRE Centre, the European Human Rights Advocacy Centre (EHRAC), the Helsinki Foundation for Human Rights (HFHR), Human Rights Watch, Interights, the International Commission of Jurists (ICJ), JUSTICE, Open Society Justice Initiative and REDRESS wish to provide the following comments.

A.- Draft Protocol 15 to the European Convention on Human Rights

A reference to the margin of appreciation and principle of subsidiarity in the Preamble

We consider fundamental that article 1 of draft Protocol 15 recalls the supervisory jurisdiction of the Court and makes clear that the Court remains the sole institution empowered to define, develop and apply tools of judicial interpretation such as the margin of appreciation doctrine.

We take note of the compromise text of current article 1 of draft Protocol 15. While the current wording recalls the supervisory jurisdiction of the Court, including when it applies tools of judicial interpretation such as the doctrine of the margin of appreciation, we consider that article 1 of draft Protocol 15 must be further improved to reflect more accurately this doctrine.

Article 1 of draft Protocol 15 must make clear that, while the Court considers that state parties have a certain margin of appreciation with regard to the application of some Convention rights, it is uncontested that the doctrine of the margin of appreciation does not apply at all in respect of some rights or aspects of rights. In this regard, both the Brighton Declaration and the draft Explanatory Report to Protocol 15 recognize that the existence and the scope of the states’ margin of appreciation “depend […] on the circumstances of the case and the rights and freedoms engaged”. While in some instances the margin of appreciation will be wide, the Court has always accepted that there are circumstances in which states’ margin of appreciation is narrow, and that the margin of appreciation does not apply at all in respect of some rights or aspects of rights.

In view of the above:
· We urge the state parties to ensure that article 1 of draft Protocol 15 better reflects the fact that the existence and scope of the states’ margin of appreciation depend on the circumstances of the case and the rights and freedoms engaged.

· Accordingly, we urge the state parties to amend the current text of article 1 of draft Protocol 15 as follows (amendment is highlighted in bold italic characters):

“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and in doing so may enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.”

B.- Draft Protocol 16 to the European Convention on Human Rights

We welcome and support the decision taken by the DH-GDR to avoid adding admissibility criteria to the ones already contained in the text of the Convention,5 as well as to allow the Court to receive contributions from any High Contracting Party or person.

With regard to the “right” to submit contributions, we regret that the current text of article 3 of draft Protocol 16 creates an imbalance between the parties to the domestic proceedings in cases where the State concerned is one of the parties to such proceedings. While we consider that the Protocol should mention that all parties to the domestic proceedings have a right to submit written comments and take part in any hearing, we take note and welcome the fact that the draft Explanatory Report to Protocol 16 indicates that the parties to the domestic proceedings should be invited to submit written and oral contributions.

With regard to the participation of the would-be applicant in the advisory opinion proceedings, we consider that a legal aid system before the Court should be made available. This would enable effective access to a procedure which is initiated by the domestic court and which may have an important impact on the outcome of the case.

With regard to the effect of advisory opinions, we consider that the interpretation of the Convention rights given by the Court in an advisory opinion should be binding on the requesting court or tribunal, and more broadly on the state authorities of the concerned High Contracting Party. We therefore regret the approach retained by the DH-GDR at article 5 of draft Protocol 16 and consider that, should such a provision be endorsed by the CDDH, the Explanatory Report to Protocol 16 should make clear that in line with the purpose of having advisory opinions on significant issues pertaining to the application of the Convention, the Court’s authoritative interpretation of the Convention should be applied by all High Contracting Parties. In this regard, the current wording of paragraph 28 of the draft Explanatory Report would need to indicate this requirement more clearly.

With regard to the type of domestic courts specified by the High Contracting Parties in accordance with article 10 of draft Protocol 16, we take note with satisfaction that the draft Explanatory Report indicates that state parties may include domestic courts which, while issuing final decisions, may not necessarily have to be considered to satisfy the exhaustion of domestic remedies.

In view of the above:

· We urge the state parties to endorse the decision made by the DH-GDR to avoid adding admissibility criteria to the ones already contained in the text of the Convention, as well as to allow the Court to receive contributions from any High Contracting Party or person.

· We recommend that the Protocol effectively enables all parties to the domestic proceedings to submit written comments and take part in any hearing before the Court.

· We recommend that a legal aid system before the Court is made available to the would-be applicant, thus enabling an effective access to the advisory opinion proceedings initiated by the domestic court.

· We recommend that the Explanatory Report indicates more clearly that the Court’s authoritative interpretation of the Convention shall be applied by all High Contracting Parties.

Friday, 23 November 2012

Telegraaf Judgment on Protection of Journalists' Sources

Yesterday, the European Court issued its judgment in yet another case about the protection of journalistic sources in the Netherlands, and again found the country in violation of the ECHR: Telegraaf and others v. The Netherlands. I am very happy to welcome a guest post by media law expert professor Dirk Voorhoof of the University of Ghent:

Security and Intelligence Services Must Also Respect Protection of Journalistic Sources
For the third time in a short period, the European Court of Human Rights has found that the Netherlands authorities have disrespected the right of journalists to protect their sources. Since the judgment in the Voskuil case (ECHR 22 November 2007) and especially since the Grand Chamber judgment in the Sanoma case (ECHR 14 September 2010, see also ECHR Blog) it has become clear that the legal framework in the Netherlands and some of the practices by its public authorities are not sufficiently guaranteeing the right of journalists to protect their sources. In the judgment of 22 November 2012 in the case of Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands (Appl. No. 39315/06), the Court is of the opinion that the telephone tapping and surveillance of two journalists by the Netherlands security and intelligence services lacked a sufficient legal basis as the law did not provide safeguards appropriate to the use of powers of surveillance against journalists with a view to discovering their journalistic sources. There has therefore been a violation of Articles 8 and 10 of the Convention (§ 102). Also an order to surrender leaked documents belonging to the security and intelligence services is considered as a violation of the journalists’ rights as guaranteed by Article 10 of the Convention. The Court is of the opinion that the Netherlands authorities could not provide relevant and sufficient reasons to justify the interference with the journalists’ rights in this case. According to the Court, there was no “overriding requirement in the public interest” justifying the order to surrender the documents (§ 131-132).

The ruling of the European Court in De Telegraaf case does also have consequences outside the Netherlands. The judgment implies that intelligence and security services in each of the 47 member states of the European Convention cannot interfere with the rights of journalists to have their sources protected under Article 10 of the Convention, unless an overriding requirement in the public interest can pertinently justify such an interference. Any coercive measures against journalist must be prescribed by law in a sufficiently precise and transparent way and effective procedural safeguards must exist to protect journalists against abuse of power by secret services. Most importantly, the Court confirms that the procedural guarantee of an ex ante review by a judge or another independent body is also applicable to targeted surveillance or telephone tapping of journalists undertaken by security and intelligence authorities. A review post factum, whether by a Supervisory Board, a Parliamentary Committee on the Intelligence and Security Services or the National Ombudsman cannot restore the confidentiality of journalistic sources once it is destroyed. As a consequence of this judgment, the legal framework and the operational practices of many security and intelligence services in Europe will need to be modified, in order to guarantee the rights of journalists under Article 10 of the Convention. Without guarantees of an ex ante review by a judge or an independent body, coercive measures against journalists by security and intelligence services are inevitably to be considered as breaches of the rights of journalists covered by Article 10.

The facts

The case concerns the actions taken by the domestic authorities against two journalists, De Haas and Mos, of the national daily newspaper De Telegraaf after having published articles about the Netherlands secret service AIVD (Algemene Inlichtingen- en Veiligheidsdienst – General Intelligence and Security Service) suggesting that highly secret information had been leaked to the criminal circuit, and more precisely to the drugs mafia. The journalists were ordered by the National Police International Investigation Department to surrender documents pertaining to the secret services’ activities. The two journalists had also been subject to telephone tapping and observation by AIVD agents. Their applications in court regarding these measures failed, as well at the level of the Regional Court in The Hague as at the level of the Supreme Court (Hoge Raad). According to the domestic courts, neither the order to surrender the documents nor the telephone tapping and observations violated the right to protect sources covered by Article 10 of the European Convention. It has been argued – both in a decision of the Minister of the Interior and a report from the Supervisory Board of the Intelligence and Security Services – that the use of special powers against the journalists was lawful and necessary in a democracy. It was emphasized that the AIVD investigation was intended to make an assessment of the leaked AIVD-files and, within that framework, it was considered necessary and proportionate to use special powers against the journalists in possession of the leaked files. Also the phone tapping was considered to meet the criteria of necessity, proportionality and subsidiarity.

When later questioned as witnesses in criminal proceedings against persons suspected of leaking secret AIVD information, the two journalists refused to answer the questions before the investigative judge, arguing that the judicial order to reveal information might lead to the identification of the person from whom they had received secret AIVD documents. As the journalists at a later hearing before the investigative judge persisted in their refusal to answer his questions, they were detained in prison for failure to comply with a judicial order to reveal information. A few days later however the journalist were released by judgment of the Regional Court of The Hague recognizing the importance of the protection of journalistic sources. The Regional Court also found that no issue of State security could arise since the availability of the documents outside the AIVD had been common knowledge in the media.

The complaint in Strasbourg

Relying on Article 8 (right to respect for private and family life) and Article 10 (freedom of expression and information), the publishing company of De Telegraaf and the two journalists De Haas and Mos together with the Netherlands Association of Journalists (Nederlandse Vereniging van Journalisten) and the Netherlands Society of Editors-in-Chief (Nederlands Genootschap van Hoofdredacteuren) complained in Strasbourg about the order to surrender documents which may identify journalistic sources and about the use of special powers by the Netherlands authorities organizing telephone tapping and surveillance. They argued that the use of special powers against the journalists, who were not themselves “targets”, could not be covered by section 6 § 2, a, of the Intelligence and Security Services Act and therefore lacked the basis in law required by the second paragraphs of Articles 8 and 10 of the Convention. Conversely, be it the case that the two journalists were in fact “targets”, then the domestic courts would wrongly have held the interest in the protection of journalistic sources to be outweighed by the interest of State security, again in violation of Article 10 of the Convention. Art. 6 § 2, a, of the 2002 Intelligence and Security Services Act stipulates that the AIVD can carry out investigations “relative to organisations and persons who, by the aims which they pursue or their activities, give rise to serious suspicion that they constitute a danger to the continued existence of the democratic legal order or to the security or other weighty interests of the State”.

In a partial decision on the admissibility, the third section of the Court decided on 18 May 2010 (Appl. No. 39315/06) to declare the application by the Netherlands Association of Journalists and the Netherlands Society of Editors-in-Chief inadmissible, as these applicant-associations had not themselves been affected by the matters complained of under Articles 8 and 10 of the Convention. Consequently, neither association could claim to be a ‘victim’ of a violation of these provisions in the sense of Article 34 of the Convention (compare ECtHR decision of 25 June 2002 in the case of Martine Ernst et autres v. Belgique (Appl. No. 33400/96) also declaring, for the same reason, the application of the General Association of Professional Journalists of Belgium inadmissible ratione personae).

The Court’s judgment

The Court makes a separate analysis of the use of special powers by the AIVD against the journalists on the one hand, and the order to surrender the documents on the other hand. The first issue on the use of the special powers is undoubtedly the most important and interesting one.

The Court disagrees with the argument of the Netherlands’ Government disputing the journalists’ position that the protection of journalistic sources was at stake. According to the Government, the AIVD resorted to the use of special powers not to establish the identity of the journalists’ sources of information, but solely to identify the AIVD staff member who had leaked the documents. The Court’s understanding of the concept of a journalistic “source” is indeed a broader one, referring to “any person who provides information to a journalist”. The Court understands “information identifying a source” to include both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” as far as they are likely to lead to the identification of a source. Therefore, the Court finds that the AIVD sought, by the use of its special powers, to circumvent the protection of a journalistic source (§ 86-87). As the issues of privacy protection and telephone tapping under Article 8 are intertwined with the Article 10 issue, the Court finds it appropriate to consider the matter under Articles 8 and 10 concurrently.
The next question is whether the interference with the journalists’ right is in accordance or prescribed by law. The Court reiterates its case-law according to which the expression “in accordance with the law” not only requires the impugned measure to have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. The law must be compatible with the rule of law, which means that it must provide a measure of legal protection against arbitrary interference by public authorities with the rights safeguarded by Article 8 § 1 and Article 10 § 1. The risks of arbitrariness are evident – especially in cases as this, where a power of the executive is exercised in secret.
According to the Court, the legal provisions regarding the special powers of the AIVD were accessible and foreseeable. The journalists could not reasonably be unaware that the information, which had fallen into their hands, was authentic, classified information that had unlawfully been removed from the keeping of the AIVD and that publishing this information was likely to provoke action aimed at discovering its provenance. The crucial issue is, however, that the status as journalists required special safeguards to ensure adequate protection of their journalistic sources. The Court is of the opinion that the present case is characterised by the targeted surveillance of journalists in order to determine from whence they have obtained their information (§ 97). Furthermore, in the field of security and intelligence services where abuse is potentially so easy in individual cases and could have such harmful consequences for a democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge. The Court refers to its finding in the Sanoma case, which involved a disclosure order of journalistic sources that was given by a public prosecutor. In that case, the Grand Chamber emphasized the necessity of the “ex ante”-character of independent review by a judge, a court or another independent body, as the police or a public prosecutor cannot be considered to be objective and impartial so as to make the necessary assessment of the various competing interests. Judicial review post factum could not cure these failings, since it could not prevent the disclosure of the identity of the journalistic sources from the moment when this information came into the hands of the public prosecutor and the police.
The Court applies this approach also in the instant case, as the use of special powers against the journalists appeared to have been authorised by the Minister of the Interior and Kingdom Relations, if not by the head of the AIVD or even a subordinate AIVD official, but in any case without prior review by an independent body with the power to prevent or terminate it. Moreover, review post factum, whether by the Supervisory Board, the Parliamentary Committee on the Intelligence and Security Services or the National Ombudsman cannot restore the confidentiality of journalistic sources once it is destroyed. For these reasons, the Court finds that the law did not provide safeguards appropriate to the use of powers of surveillance against journalists with a view to discovering their journalistic sources. There has therefore been a violation of Articles 8 and 10 of the Convention (§ 100-102).
Regarding the second issue, the Court agrees that the order to surrender the leaked documents to the AIVD was prescribed by law and pursued a legitimate aim (‘national security’ and ‘prevention of crime’), but it estimates the interference with the right of journalists to protect their sources in casu not necessary in a democratic society. Referring to its case law since Goodwin v. the United Kingdom (1996), an interference with a journalist’s sources can only be justified by an overriding requirement in the public interest. In its reasoning the Court also emphasized that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2. As none of the reasons invoked by the AIVD are considered relevant and sufficient by the European Court, the conclusion is that the order to surrender the documents was not justified and that this interference amounted to a violation of Article 10 of the Convention.


The judgment in De Telegraaf case and the finding of a double violation of Article 10 of the Convention, both regarding the order to surrender the documents as with regard the coercive measures by the AIVD against the journalists, are fully consistent with the Court’s earlier case law applying Article 10 in cases of protection of journalists’ sources.

In the Sanoma case, the Court in its Grand Chamber judgment of 14 September 2010 emphasized the importance of source protection based on Article 10 of the Convention, noting that “orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources” (§ 89). In the judgment of 22 November 2012 in the case of Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, the European Court reiterates that “protection of journalistic sources is one of the basic conditions for press freedom, as is recognised and reflected in various international instruments including the Committee of Ministers Recommendation (...). Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest” (§ 127).

It would have been very surprising if the Court had neglected these principles in a case concerning the interference with journalists’ sources by security and intelligence services. As the Grand Chamber has explicitly stated in Sanoma v. the Netherlands on 14 September 2010, procedural safeguards proscribed by law should inherently be part of the protection of journalistic sources in application of Article 10 ECHR. According to the Court, “first and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body” (§ 90). The Court is of the opinion that “given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed” (§ 90). The Grand Chamber emphasized that “the requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources' identity if it does not” (§ 90). It is clear in the Court's view, “that the exercise of any independent review that only takes place subsequently to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality” (§ 91). The Court continued in Sanoma to emphasize the necessity of the “ex ante”-character of such independent review: “Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist's sources (..). In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk” (§ 92).

The Court has now in its judgment of 22 November 2012 fully applied this approach in relation to coercive measures by the security and intelligence services. As a consequence of this judgment, the legal framework and the operational practices of many security and intelligence services in Europe will need to be modified. Without guarantees of an ex ante review by a judge or an independent body, coercive measures such as telephone tapping, registration of telecommunications or other forms of surveillance of journalists by security and intelligence services are inevitably to be considered as breaches of the rights of journalists covered by Article 10.  An ex ante judicial review is  necessary to guarantee that the reasons invoked by security and intelligence services to have access to journalists’ sources are pertinently and sufficiently motivated.  A lack of such a guarantee is as such a breach of Article 10 of the Convention.

Professor Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media and of the Human Rights Centre and the Center of Journalism Studies at Ghent University. Further information on Dirk Voorhoof can be found on his personal webpage here. He earlier reported on this ECHR BLOG about the case Sanoma Uitgevers B.V. v. the Netherlands (ECtHR 30 March 2009 and ECtHR (Grand Chamber) 14 September 2012) and the Financial Times Ltd. a.o. v. the United Kingdom (ECtHR 15 December 2009). For an overview of the Court’s case law on protection of journalistic sources, see also D. Voorhoof, “The Protection of Journalistic Sources Under Fire?”, in European Media Law, Collection of Material 2012-2013, Knops Publ., 2012, 287-306.

Monday, 19 November 2012

New Handbook on ECHR in French

Professor Laurence Burgorgue-Larsen of Paris-I (Sorbonne) University has just published a new French-language handbook on the European Convention on Human Rights. Entitled 'La Convention européenne des droits  de l’homme', it has been published by Lextenso Éditions. Burgorgue-Larsen is an expert in both Inter-American and European human rights jurisprudence. This is the book's abstract:

Cet ouvrage a pour ambition de proposer une synthèse des grandes lignes jurisprudentielles dégagées par la Cour européenne des droits de l’homme concernant chaque droit garanti, y compris ceux consacrés par les protocoles dits « matériels ». Après une introduction qui entend présenter tant la naissance et l’évolution du système conventionnel que les défis importants auxquels il est confronté, plus de cinquante ans de jurisprudence sont analysés à la fois de façon concise et effective. Cet ouvrage s’adresse tant aux étudiants qu’aux praticiens de l’univers judiciaire en contact permanent, de nos jours, avec la logique induite par la protection des droits de l’homme.

Le livre a été conçu afin de faciliter son maniement en tant qu’outil de travail : outre une bibliographie générale – présentant les études « classiques » sur la Convention en anglais, français, espagnol et italien – chaque commentaire des droits consacrés à l’échelle conventionnelle est assorti d’une bibliographie spécialisée afin de permettre d’éventuels approfondissements de la part des lecteurs. De même, il a été décidé de renvoyer les index directement aux commentaires des articles de la Convention européenne. Il s’agit d’un moyen supplémentaire pour le lecteur d’identifier, rapidement, les liens entre un thème (index thématique) et un arrêt (index jurisprudentiel) avec un droit précis. L’ensemble est à jour au mois de septembre 2012.
As this summary indicates, it is a good starting point for research, as it offers both general literature references and specialised ones per Convention article in a number of languages.

Thursday, 15 November 2012

HUDOC Advanced Search Tutorial

The Court has just put online a short video tutorial on the advanced search options of the recently renewed HUDOC case-law database. It explains in much more detail than the basic earlier video how one can search through the extensive jurisprudence of the Court (and the former Commission to a certain extent). Here it is:

Wednesday, 14 November 2012

New ECHR Protocols and Structural National Problems

A few weeks ago, at the end of October, the Committee of experts on the Reform of the Court (DH-GDR), met again to further discuss future Protocols 15 and 16 to the Convention (see my earlier reporting here). The report of this most recent meeting

All of these drafts will now be discussed by the Steering Committee for Human Rights (CDDH) at the end of November. The documents relating to the Committee's work can be perused here (and here in French). This website also includes reports of the meetings which give some insights into which points were discussed in the negotiations. An example is that the Commissioner for Human Rights will be given the right to participate in advisory opinion proceedings (in the new Protocol 16). It also set up a drafting group "C" (on the practice of interim measures and on the possibility of creating a "representative application procedure"- an additional way of dealing with large numbers of situations relating to the same human rights issue in a certain country, akin to class actions and collective complaints) and designated an expert consultant, Mr Martin Eaton, to prepare a draft toolkit to inform national public officials about state obligations under the ECHR.

The texts discussed at the meeting were:

In a separate process, the Legal Affairs Committee of the Parliamentary Assembly approved a report this Monday, entitled 'Ensuring the viability of the Strasbourg Court: structural deficiencies in States Parties'. Written by rapporteur Serhii Kivalov from Ukraine, the report focuses on what national authorities could and should do to counter and prevent structural and systemic human rights violations. This would enable the Court to be less burdened with repetitive applications. The last pages of the reprot also give a handy overview of all the pilot judgments so far. The report indicates that nine states face the most structural problems: Bulgaria, Greece, Italy, the Republic of Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine.

Friday, 9 November 2012

Article on Extraterritoriality of the ECHR

Professor Samantha Besson (University of Fribourg) has published the article 'The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to' in the newest issue of the Leiden Journal of International Law (vol. 25, issue 4, 2012). This is the abstract:

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

Monday, 5 November 2012

ECHR Articles in the Modern Law Review

The newest issue of the Modern Law Review (vol. 75, issue 6)  includes two articles on the European Convention of Human Rights. The first is an article written by Ian Leigh and Rex Ahdar entitled 'Post-Secularism and the European Court of Human Rights: Or How God Never Really Went Away'. This is the abstract:
This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils‘ religious freedom nor the proselytising or coercive effect of the 'passive‘ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion-state frameworks into a strict American-style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.

The second is a case commentary written by Paul Johnson entitled 'Adoption, Homosexuality and the European Convention on Human Rights: Gas and Dubois v France'. This is the abstract:

On 15 March 2012 the European Court of Human Rights (the Court) issued its first judgment addressing the differential treatment of same-sex and opposite-sex couples in respect of the adoption of a child. The Court held that excluding same-sex couples in civil partnerships, who have no legal right to marry, from adoption provisions available to married opposite-sex couples does not violate rights guaranteed by the European Convention on Human Rights (the Convention). I argue that the Court's reasoning in Gas and Dubois v France is unpersuasive and unsustainable in light of its wider case law.

Thursday, 1 November 2012

New Publications on the ECHR

At the start of the month, again a short selection of articles published in various journals or online, with the Convention or Court as their subject-matter. First off, the Indiana International and Comparative Law Review includes an article by J. Heider entitled 'Unveiling the truth behind the French burqa ban: the unwarranted restriction of the right to freedom of religion and the European Court of Human Rights' in vol. 22,  no. 1 (2012) pp. 93-130.

In addition, the website of the Italian Society of International Law, on its forum page includes three articles about the ECHR. Two of them relate to the EU's accession to the European Convention:

And one is a comment on the Costa and Pavan v. Italy judgment of this summer:

Tuesday, 30 October 2012

Open Society Paper on ECHR Implementation

The Open Society Justice Initiative has drafted a paper as a kind of counterweight to all the plans and initiatives from the ECHR state parties and those from within the Council of Europe itself. The paper, entitled 'National Implementation of the Interlaken Declaration. Perspectives of European civil society on national implementation of the Interlaken Declaration and Action Plan: Czech Republic, Hungary, Italy, Poland, Republic of Moldova, Russian Federation and Ukraine' has been formally submitted to the Council of Europe's Steering Committee on Human Rights and will thus become part of the discussions. It includes a large number of practical recommendations, from a civil society perspective to improve the effective implementation of European Court judgments. One of its very useful features is an analysis of implementation problems in some of the most problematic state parties. Hopefully a way to make a difference where it is needed most. Here are some excerpts from the press release:

The 47 members of the Council of Europe have pledged to improve their implementation of the rulings of the European Court of Human Rights (ECHR), something that would significantly reduce the case load that continues to weigh on the Court. After April's Brighton Conference on the future of the Court, the Justice Initiative urged member states to pursue three principle objectives: implementing the European Convention at a national level, complying with judgments of the court, and providing adequate resources for previously agreed reforms.

National governments have presented their assessments of their own progress in this area, but without any significant input from the civil society groups and human rights lawyers who have resorted to the court to address abuses of the European Convention on Human Rights. This paper reflects civil society perspectives on national implementation in seven countries in which the Open Society Justice Initiative works closely with local partners, and in which the lack of implementation in crucial areas severely and negatively affects the promotion and protection of human rights: the Czech Republic, Hungary, Italy, Moldova, Poland, Russia, and Ukraine.

The Open Society Justice Initiative will hold consultations around the bi-annual meeting of NGOs at the European Court of Human rights in November 2012 to discuss how to improve supervision of the enforcement of ECHR judgments.

Monday, 29 October 2012

Video in German about the Court

Das Erste, one of Germany's main national public broadcasters has produced a short video about the European Court of Human Rights. The short feature (just a bit over seven minutes) in the series Ratgeber - Recht gives a short overview of what the Court is and does. It is entitled 'Die letzte Hoffnung? Der Europäische Gerichtshof für Menschenrechte' (The Last Hope? The European Court of Human Rights).

Thursday, 25 October 2012

New Journal with ECHR-related Articles

A brand new journal has been added to the universe of human rights periodicals: the Cyprus Human Rights Law Review. The new review, led by Leto Cariolou, of the European Human Rights Law Institute, aims to promote:

knowledge, appreciation and constructive discussion on matters of human rights law and policy, particularly those affecting the Cypriot legal order. The Review publishes articles and case notes that consider human rights from an international to domestic context, book reviews, analysis of recent jurisprudence and practice of international and regional human rights systems and analysis of recent and relevant jurisprudence and practice of Cypriot courts and other domestic authorities.

The majority of articles in the first issue relate to the European Convention of Human Rights. I mention those here:

  • Dean Spielmann, Recognition and Execution of foreign judgments and the European Convention on Human Rights
  • Panayotis Voyatzis, The right to legal assistance free of charge in the case-law of the European Court of Human Rights
  • Loukis G. Loucaides, The right to Freedom of Thought as protected by the European Convention on Human Rights  
  • Natasha Bakirci, Al-Skeini and others v. the United Kingdom
  • Daniel Rietiker, Neulinger and Shuruk v. Switzerland
  • Theodora Christodoulidou, Kafkaris (no.2) v. Cyprus
Congrats to the editors of this new review!

Wednesday, 24 October 2012

Liber Amicorum for Bratza on Freedom of Expression

This week a special collection of essays was offered to the Court's president to mark the end of his many years in Strasbourg, first in the European Commission of Human Rights and later at the Court, since its fulltime start in 1998. Contrary to a usual Liber Amicorum, this one has all essays tightly organised around a specific theme, which makes it all the more interesting. The book was edited by Josep Casadevall, Egbert Myjer, Michael O'Boyle and Anna Austin and is entitled 'Freedom of Expression. Essays in honour of Nicolas Bratza'. It was published by Wolf Legal Publishers in cooperation with the Council of Europe. The beautiful tribute to one of Strasbourg's most experienced figures (decades ago already, Bratza was one of the counsels for the government in the famous Handyside case) includes a wide variety of perspectives on the central theme: freedom of the press and privacy, responsible journalism, freedom of expression of judges, lawyers, witnesses and civil servants, offensive speech and much more. This is the abstract:

Freedom of expression is one of the cornerstones of all democratic systems. Without it ideas about how to protect the common good in our societies would be impoverished. A marketplace of ideas is essential for democracy to thrive. It is for this reason that the European Court of Human Rights attaches such importance to political discourse as well as to speech and other forms of expression that may shock and offend. Yet such freedom may clash with other rights such as the right to privacy, the right to a good reputation. It may even conflict with the need to protect public order or morals. Societies require pluralism if they are to grow yet democracy also seeks to limit extreme forms of speech that preach hate and advocate violence. But are such restrictions on free speech legitimate and by what criteria are we to judge their necessity?

We rely on journalists to report accurately the controversies of the day and protect their right not to reveal sources. They also enjoy a broad right of fair comment. But we expect them to be responsible in their factual reporting, to check their sources and to have regard to the need to observe some degree of restraint when reporting or commenting on matters that affect the rights of others. But is it legitimate to interfere with reporting that is in the public interest and how can the law promote responsible journalism?

This collection of essays on freedom of expression contains contributions by distinguished judges and lawyers from many varied backgrounds that explore these themes with a critical eye. The book seeks to honour Sir Nicolas Bratza, President of the European Court of Human Rights, for his outstanding contribution, as a jurist and leading judicial figure, to the protection of human rights in Europe.
I can add that the book also includes one of the most original footnotes I ever saw: on page 363 it features part of the musical score of Edward Elgar's Enigma Variations!

Tuesday, 23 October 2012

New Issue RTDH

The newest issue of the Revue trimestrielle des droits de l'homme is out now (No. 92 - October 2012). It includes the following ECHR-related articles:

• Katia Lucas, Revirements de jurisprudence et non-rétroactivité de la « loi » : la Cour européenne des droits de l’homme face au sempiternel problème de la rétroactivité naturelle des changements de cap jurisprudentiels

• Abdelkhaleq Berramdane, La Cour européenne des droits de l’homme et l’institution du « nadzor »

• Roxani Fragkou, La consécration du droit à l'interprétation et à la traduction au procès pénal à travers la jurisprudence de la Cour européenne des droits de l'homme : un processus évolutif

• Elisabeth Lambert-Abdelgawad, L’exécution des arrêts de la Cour européenne des droits de l’homme (2011)

• Anne Gilles, L’organisation juridictionnelle française passée au crible de la Convention européenne des droits de l’homme – Les conséquences de l’arrêt Moulin c. France du 23 novembre 2010 (obs/s. Cour eur. dr. h., Moulin c. France, 23 novembre 2010)

• Sophie Grosbon, La discrimination dans l’imposition de frais de scolarité à certains ressortissants étrangers (obs/s. Cour eur. dr. h., Ponomaryovi c. Bulgarie, 21 juin 2011)

• Francis Haumont, La crise des déchets en Campanie et les droits de l’homme (obs/s. Cour eur. dr. h., di Sarno e.a. c. Italie, 10 janvier 2012)

•Jean-Pierre Marguénaud, L’affaire Kopf et Liberda ou la consolation procédurale (obs/s. Cour eur. dr. h., Kopf et Liberda c. Autriche, 17 janvier 2012)

Monday, 22 October 2012

New ECHR Publications

Albert Sánchez Graells (University of Hull), has published a working paper on SSRN, entitled 'The EU’s Accession to the ECHR and Due Process Rights in EU Competition Law Matters: Nothing New Under the Sun?'. This is the abstract:

In light of the ongoing discussion on the potential need for reform of the enforcement system of EU competition law to make it compliant with Article 6(1) of the European Convention on Human Rights (ECHR), the aim of this paper is to contribute to the debate in a threefold manner by: i) sketching the peculiarities of the enforcement of competition law (in general, but with a focus on EU competition law), which basically derive from the complex and data intensive economic assessments required in most cases; ii) critically appraising the requirements of Article 6(1) ECHR in the field of EU competition law in view of those peculiarities; and, finally, iii) assessing the impact of those requirements in terms of the potentially necessary amendments to the EU competition law enforcement system upon the EU’s accession to the ECHR.

The basic contention of the paper is that, given the specific architecture of the EU competition law enforcement system under Regulation 1/2003 (and the domestic competition laws of Member States) — which have crystallized in a network of highly specialised and independent administrative agencies that, generally, offer procedural guarantees equivalent (or superior) to those of most tribunals in other areas of the law — and as long as an effective (soft or marginal) judicial review mechanism is available to the undertakings affected by sanctions due to EU competition law infringements, no significant changes are required in order to make the system comply with Articles 6(1) ECHR and 47 EUCFR. This position is further supported by the express normative assumption that undertakings (or companies) deserve a relatively more limited protection than individuals under the ECHR and, more specifically, under Article 6(1) ECHR — at least as regards non-core due process guarantees, such as the standard of review applicable (and as opposed to ‘core’ due process guarantees such as the presumption of innocence, the principle of equality of arms, the right to have full access to the evidence, or the right not to suffer undue delays).

Tobias Lock of the University of Surrey School of Law, has published 'End of an Epic? The Draft Agreement on the EU's Accession to the ECHR'  in this year's Yearbook of European Law, also on SSRN. This is the abstract:

This contribution aims to analyze and assess the draft agreement on the European Union’s (EU) accession to the European Convention on Human Rights (ECHR). The paper first discuss the effects which accession will have on the system of human rights protection under the ECHR focusing on the most relevant features of the accession agreement, such as the co-respondent mechanism and the prior involvement of the ECJ. The second part of this contribution explores the future status of the ECHR in the EU’s legal order. It is argued that accession will not affect the status quo of fundamental rights protection before the EU's courts or domestic courts in any material way. Nonetheless, accession is to be welcomed as it will allow for full external scrutiny by the European Court of Human Rights.

Finally, Lina Urbaitė has written 'Judicial Activism in the Approach of the European Court of Human Rights to Positive Obligations of the State', published in the Baltic Yearbook of International Law (vol. 11, 2011).

Wednesday, 17 October 2012

(European) Human Rights and the UK Constitution

Colm O'Cinneide of University College London has written the report 'Human rights and the UK constitution', commissioned by the British Academy for the Humanities and Social Sciences. In the author's own words, it 'makes the argument that the existing relationship between UK law and the ECHR is entirely compatible with constitutional principles and any future reform of UK law in this area should keep Convention rights incorporated in UK law.' This is the short summary:

Human rights law has been the subject of considerable controversy in the UK over the last few years. For example last year’s ruling by the European Court of Human Rights (ECHR) that the UK government should end its blanket ban on prisoners voting, once again raised the thorny issue of the UK’s relationship with the European Court and whether the UK should have its own Bill of Rights. The issue of human rights appears frequently within the media and often causes heated debate with the question of the UK’s relationship to the ECHR causing some of the more fervent aspects of the debate.

In Human rights and the UK constitution Colm O’Cinneide clarifies some of the key issues at stake. He evaluates the workings of the UK human rights law, and the nature of the relationship between the ECHR and the UK courts and the Parliament. Finally, the report explores how proposals for a new Bill of Rights may affect the protection of human rights within the framework of the UK’s unwritten constitution.

Human rights and the UK constitution finds that the current state of human rights law in the UK strikes a good balance between respect for democracy and the need to protest human rights. Attempting to recalibrate this delicate balance may prove to be a difficult and thankless task.

Tuesday, 16 October 2012

Extraordinary Rendition, Forced Labour, and Evidence Obtained by Torture

There are three cases, among the many decided by the Court in the past few weeks, which I would like to highlight. They deal with testimony potentially obtained through torture, forced labour and extraordinary rendition respectively.

The first is the case of El Haski v. Belgium (available only in French). It deals with a terrorist suspect against whom evidence obtained in Morocco during legal proceedings there (following the 2003 Casablanca bombings) was used in court in Belgium. It was unclear whether such evidence was in fact obtained by means of torture. The Court held that it was sufficient for exclusion of such evidence from trial in an ECHR state party if a suspect could show that there was a "real risk" that such evidence had been obtained by treatment contrary to Article 3. The case builds on the recent Othman (Abu Qatada) v. the United Kingdom judgment, from January of this year. In this case, such a real risk existed. The refusal by Belgian courts to exclude the evidence thus led to a violation of the right to a fair trial (Article 6 ECHR).

The second is the case of C.N. and V. v. France (available only in French). After Siliadin (2005) and Rantsev (2010, see my earlier post here) this is the third important case to breathe life into the often neglected Article 4 of the Convention, which prohibits slavery, servitude and forced labour. C.N. and V were two orphans from Burundi brought to France by their uncle and aunt in order to take care of them. In practice, they were both made to work in their household for long hours and under the threat of being sent back to Burundi. The case is interesting on several points. First, it offered the Court the possibility to clarify how servitude can be differentiated from forced labour, the former being an aggravated form of the latter. The Court explained that servitude is characterised by  the feeling of the victim that her or his situation cannot be changed, supported by objective elements (para. 91 of the judgment). Secondly, the Court distinguished the situation of the two sisters in detail. While both had to work, the younger sister was allowed to go to school, whereas the older was given no opportunity to develop herself or to establish social ties beyond the house. Only the situation of the older sister fell within the scope of Article 4 ECHR. The Court found that although France had complied with its positive obligation to conduct an effective investigation (uncle and aunt were brought to justice eventually), it had violated its positive obligation to put in place an adequate legislative and administrative framework to combat forced labour and servitude effectively (in parallel to the older Siliadin case, also directed against France). The facts dated from before 2003, when the penal code was changed.

Finally, the third case is Abdulkhakov v. Russia, one of the very rare cases where a form of extraordinary rendition yields a judgment of the European Court. The case concerns the kidnapping in Moscow and transfer to Tajikistan of an Uzbek refugee, who was sought in Uzbekistan for  involvement in extremist activities. Although the Russian authorities denied any involvement, the Court found that what happened to the applicant could not have occurred without the knowledge or involvement of the state. Thus it held Russia to account. Of course it is notable here that the rendition was towards a non-ECHR state party (Tajikistan). The Court concluded that this amounted to a violation of the right to individual petition, since the illegal transfer in effect frustrated the purpose of an interim measure imposed on Russia earlier not to transfer him. In addition, the Court also found a violation of Article 3 ECHR, since Russia had not made any assessment of whether the applicant would face a real risk of torture in Tajikistan, all the more so since the transfer was conducted secretly and outside nay legal framework which could have provided safeguards. As the Court reiterated "any extra-judicial transfer or extraordinary rendition, by its deliberate circumvention of due process, is an absolute negation of the rule of law and the values protected by the Convention. It therefore amounts to a violation of the most basic rights guaranteed by the Convention" (para. 156).

More extraordinary rendition cases are in the pipeline, even more directly implicating ECHR state parties. The Court has asked Poland and Romania in two different cases to provide answers about possible secret CIA detention centres on their territories (this means the cases have been communicated, with questions, to the states concerned). For more information, see the website of the Open Society Justice Initiative.