The Range of Solutions to the Russian Cases Pending before the European Court of Human Rights: Between ‘Business as Usual’ and ‘Denial of Justice’

By Kanstantsin Dzehtsiarou, University of Liverpool

 

Exactly in a month time, on 16 September 2022, Russia will no longer be a party to the European Convention on Human Rights (ECHR or Convention). The European Court of Human Rights (ECtHR, Court) will have no jurisdiction over human rights violations that will happen after that. It does not mean that the ECtHR will stop accepting applications against Russia immediately on 16 September 2022 as often victims of human rights violations have to go through national legal remedies and this can take months or even years. It will be mostly for the Court to decide how to treat the applications against Russia both pending now and those arriving after 16 September 2022. The Court already had at least five months to clarify this, but no publicly available decision has been taken yet and it will perhaps be a last-minute compromise between judges. The reason for this delay is that this question is complex in terms of its consequences for the Court, for the victims of human rights violations and for the Council of Europe as a whole.

As of 30 June 2022, there were 17,550 pending applications from Russia. Although the vast majority of these cases are most likely repetitive or inadmissible, there are some complex and high-profile cases including over a dozen of inter-state applications. So, what should the Court ‘do’ with the pending applications? The ECtHR has a few plausible solutions to this challenging problem:

1. ‘Business as usual’

The Court can continue dealing with all pending Russian cases. There is an expectation under the Convention that the Court decides every application that is submitted to it. However, this rule has exceptions (for instance, if the applications that do not comply with certain formal rules they are not even accepted or registered) and the decision-making process at the Court is not accompanied by any fixed timeframe. So, the Court can deal with these cases for years and years as it often does currently. It seems that the ECtHR will be able to dispose clearly inadmissible applications fairly easily and quickly because this process does not normally involve the respondent state and it is done by a single judge or committee in more complex cases. However, dealing with more important meritorious applications will be much more difficult within the ‘business as usual’ model for the following reasons: first, it is clear that the Russian authorities will not collaborate with the Court. For the Russian authorities, only the judgments that entered into force on 16 March 2022 should be enforceable. However, it seems that for the Russian authorities this only include monetary compensation. There will be no further collaboration with the Committee of Ministers on any issues of implementation of general measures of pending judgments of the ECtHR. Although this is an arbitrary chosen position it will be very hard for the Council of Europe to change it in the current political climate. The collaboration of the respondent state with the Court is crucial not only because it increases the legitimacy of the judgments and facilitates the compliance with the principle of equality of arms but it allows the ECtHR to simply clarify certain issues that the applicant might have no knowledge of or access to. Moreover, pursuant to Article 26(4) ECHR, a judge elected on behalf of Russia should sit on the bench in Chamber and Grand Chamber cases. After 16 September 2022, judge Lobov must not be any longer a member of the Court. According to Article 20 ECHR, the Court shall consist of a number of judges equal to that of the Contracting Parties. When Russia is gone the Russian judge should be gone too. The ad hoc judge from the list submitted by the state can participate in the hearings but it is unlikely that any of the ad hoc judges from the Russian list will be willing or ‘allowed’ to participate. The Court can of course allocate any of the sitting judges to act as a ‘Russian judge’ in a particular case as it did in the ‘foreign agents’ case in which Judge Serghides elected on behalf of Cyprus acted as an ad hoc judge from Russia. This tactic has a questionable legality and legitimacy if the provisions of the ECHR are taken seriously. Article 24(4) states that

"There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge."

There will be no sitting judge from Russia and it is highly unlikely that anyone from the list of ad hoc judges will be willing to sit. So, the Court will have to decide cases without the Russian judge and without the input from the respondent state. A one-of departure from the rule enshrined in Article 24(4) is not perhaps catastrophic but a systematic bypassing of this norm might undermine the legitimacy of the Court’s processes.

The second reason why the ‘business as usual’ model is suboptimal is that it will take a lot of resources from the Court in the circumstances when the budget of the organisation will be significantly reduced by the departure of Russia, who has been a major contributor to the budget of the Council of Europe. The resources spent on the cases from Russia will be arguably taken from other cases in relation to situations where the Court can make a significant and meaningful impact. And this leads me to the final and perhaps the most important reason. The Russian authorities will not implement any of the judgments that entered into force after 16 March 2022. The argument that execution of these judgments can be used as a condition for the return of Russia into the organisation is not particularly convincing as there is no indication that Russia is going to come back any time soon. Moreover, there are plenty of unenforced cases at the moment and the currently available unexecuted judgments pending before the Committee of Ministers can make a solid basis for a conditional return of Russia to the Council of Europe.

Finally, I have to mention that the victim-centric approach would perhaps support the ‘business as usual’ model as in this case the ECtHR will at least confirm that human rights violations have taken place. Having said that, this acknowledgement will not lead to any tangible changes: the applicants will not even receive the monetary just satisfaction from the respondent state. This might increase the feeling of frustration and hopelessness rather than provide any satisfaction.

2. ‘Pick and choose’

Another possible solution to the Russian docket of cases at the ECtHR can be a ‘pick and choose’ model. This way, the Court will select a number of leading cases which would perhaps include inter-state cases, sensitive political cases and the cases exemplifying the structural legal problems in Russia and deliver judgments in these cases.

Within this model the Court can use the so-called Burmych scenario. The judgment in Burmych v Ukraine was a follow-up judgment to the pilot case of Ivanov v Ukraine. In this case the Court ruled that non-execution of the final national judgments is a violation of Article 6 of the ECHR and that the delay in execution should be covered by an appropriate compensation. In Burmych the Court decided that there is no point in keeping producing judgments in clone cases and transferred all applications dealing with the same issue to the Committee of Ministers. Applying this approach to the pending Russian cases, the Court can pick the key complaints on broadly defined themes, then attach similar applications to this leading case and then transfer all of them to the Committee of Ministers without giving separate judgments in each individual case. One of the drawbacks of this approach is that it will cement the questionable principle applied in Burmych as a modus operandi of the Court.

This model would highlight the key problematic areas and give some satisfaction to some victims. It would also be a less resource-consuming than the ‘business as usual’ model but this approach would not be able to solve other problems highlighted in the previous paragraph such as lack of Russian engagement and probably total short-term ineffectiveness of such judgments. It also creates a new challenge: the Court can be accused of a selection bias. The ECtHR will perhaps have to justify why some cases are selected while some others are not.

3. ‘Total freeze’

Total freeze is one of the quicker and more radical solutions available to the ECtHR. The Court can suspend the adjudication of all applications against Russia until the situation changes. The President of the ECtHR has already briefly suspended examination of Russian cases before this suspension was lifted by the Plenary of the Court. This means that suspension is a possible avenue for the Court. This suspension can take at least two forms – either a total freeze of all pending applications or a rejection of all clearly inadmissible applications and then freezing of all meritorious ones. Both of these solutions would save a lot of resources for the Court, it will remove the need for a ‘deemed to fail’ collaboration with Russia and will not require the Court to select the ‘lucky’ applications to deal with. However, no victim will get even moral satisfaction from the fact that the ECtHR found their rights violated but one can argue that this moral satisfaction is not enough for an operation of a judicial organisation. The ECtHR is not an archive that systematises the human rights violations in Russia. It is a judicial institution. The legitimacy of the Court depends on the effective implementation of its judgments and no implementation can be expected from the judgments against Russia.

4. ‘Strike out’

The clearest and the most radical solution would be striking out all the applications against Russia pending before the ECtHR. Pursuant to Article 37(1)c ECHR, the ECtHR can strike out any application for any reason if it is no longer justified to continue the examination of the application. The Convention provides very wide discretion to the Court here. The ECtHR can decide that in the current situation the delivery of judgments will make no impact and therefore all of the applications should be excluded from the list of pending cases. However, this option is not very likely. It was just decided by the ECtHR that the Convention is applicable to Russia for 6 months after Russia ceased to be a member of the Council of Europe. This decision was not the only plausible interpretation of Article 58 ECHR that regulates the denunciation of the Convention. This would have been irrational if immediately after taking this decision, the Court disposed all applications, including of those which were submitted in relation to the violations that happened between 16 March and 16 September 2022. It is also unlikely that the Court would do it for political reasons – it can be seen as a complete denial of justice for a vast number of victims. So, this option is not plausible at least in the short run.

Conclusion

Neither ‘business as usual’ nor ‘strike out’ models are very plausible. It is more likely that the Court will chose some combination from the spectrum between the ‘pick and choose’ and ‘total freeze’ models. In making this decision, the Court will have to weigh the importance of symbolic judgments against Russia and the amount of resources and legitimacy that will be required to deliver these judgments. These resources might be needed in other areas and in relation to other situations.

One Judge, Three Questions Video Series

Earlier this week, the new judge in respect of Ukraine (on which we reported earlier here) was sworn in at the European Court of Human Rights: Mykola Gnatovskyy, former member and president of the European Committee Against Torture. For the Court itself, this was also the occasion to launch a new video series, of which the first episode, featuring the new judge, hasn't ow been published online. The series is called: One Judge, Three Questions, and serves as a very short getting-to-know new judges:

Opening of the Judicial Year

Last week, on 24 June, the formal opening of the judicial year of the European Court of Human Rights took place in Strasbourg. The dual event, slightly deferred due to the pandemic, started with a seminar for judges of Europe's highest courts on the apt topic of 'Human rights protection in the time of the pandemic: new challenges and new perspectives'

Subsequently a special ceremony, or solemn hearing, took place to open judicial year 2022. Speeches were held by the Court's President, Robert Spano, by the President of Greece, Katerina Sakellaropoulou, addressed representatives from the highest courts of the member States of the Council of Europe, and by Dunja Mijatović, the Council of Europe's Commissioner for Human Rights (see also the photo). Their respective speeches can be read by clicking on the hyperlinks over their names.

The Greek President reminded the audience of the special history of Greece vis-à-vis the Convention system, with the hiatus of the military regime. Court President Spano not only gave on overview of the Court's main judgments of the past year, but also issued a stark warning:

"A Europe in which the separation of powers has been eroded by those in power; A Europe where sustained public expressions of hostility or outright refusal to abide by court judgments are commonplace; A Europe where judges are simply unable to do their jobs independently and impartially for fear of reprisals or attacks resulting in unfettered governmental power: This is a Europe in which the rule of law is at risk of disappearing. This is a Europe in which we will no longer be free, as recent events have once again shown us."

The Commissioner, in turn, pointed to the erosion of the rule of law, called upon states to no longer procrastinate in implementing human rights obligations under the Convention, and emphasised that "member states should make better use of the tools of the Organisation to exert the necessary pressure to ensure respect for democracy, human rights and the rule of law by their peers."

Invoking Subsidiarity to Weaken ECHR Protection in the UK

Guest post by Katie Lines

Introduction

For many months now, the United Kingdom’s Government has been solidifying plans to drastically change the country’s human rights framework in a manner that could jeopardise its continued membership of the Council of Europe. On 10 May, the Government confirmed its intention to introduce a new Bill of Rights, with the aim of “curbing the incremental expansion of a rights culture” and restoring “some common sense to the [UK’s] justice system”. The proposed Bill of Rights would replace the current legislation that gives effect to the European Convention on Human Rights (“ECHR”) in UK law, the Human Rights Act 1998. 

This blog post looks at one aspect of the rationale used to justify the Government’s plans for change: the principle of subsidiarity. It argues that, in the name of fostering subsidiarity, the UK’s plans for change would partially dismantle the domestic mechanisms that promote it, and would significantly weaken ECHR protection in the UK.

 

Subsidiarity UK-style?

 

The Government outlined its plans for change in a consultation document that was published in December 2021, in which views were sought on a number of options for reform. The Government’s principal aims, as set out in the consultation document, include reducing the influence of the European Court of Human Rights (“ECtHR”) on UK law, affirming the supremacy of the UK Parliament in the face of adverse Strasbourg rulings, and restricting the extent to which individuals who have not “respected the rights of others” can make use of human rights claims and remedies. The Government intends for the UK to remain party to the ECHR, but if the Bill of Rights is enacted in line with the Government’s most far reaching proposals, then the UK would inevitably be placed in breach of its obligations under the Convention. 

Throughout the consultation document, the Government uses the twin principles of subsidiarity and the margin of appreciation to justify its plans for change. The document expresses a narrow view of these principles, mostly portraying them as devices to constrain the Strasbourg Court and protect against overreach. Subsidiarity is described as the Strasbourg Court’s “doctrine of self-restraint” which entitles State Parties to “push back” by taking a different stance from the Court, especially where “there is a democratic mandate on a contentious issue of public policy”. Likewise, the margin of appreciation is portrayed as something that States can claim for themselves to keep Strasbourg at bay, with the consultation document noting that States are able to “assert the margin of appreciation over matters which, particularly in a mature liberal democracy, should be left to national courts and elected legislatures”. 

The Government’s plans are described as “an opportunity” to make use of the Strasbourg Court’s commitment to an “increased margin of appreciation” and enhanced recognition of the principle of subsidiarity, following the Brighton Declaration and the coming into force of Protocol 15 in August 2021. The proposed Bill of Rights will “reflect, support and encourage” an increased focus on the subsidiarity principle by “enhancing Parliament’s role”, which includes allowing Parliament to have “the last word” on how to respond to adverse rulings from Strasbourg. 

 

Subsidiarity from an ECHR perspective 

The Strasbourg Court has recognised its subsidiary nature since the early years of the Convention system. However, the notion of subsidiarity expressed in the consultation document – as a tool State Parties can invoke to place limits on the Court – first became prominent with the 2012 Brighton Declaration. Although many states have pushed back against this was of framing the issue, the UK is not the only State Party to use subsidiarity as a vehicle to critique the alleged overreach of the ECtHR. For example, when Denmark assumed chairmanship of the Council of Europe in 2017, thecountry’s priorities included promoting “the need to take into account the principle of subsidiarity and its functional tool, the margin of appreciation”, in light of “challenges resulting from the fact that the European Court of Human Rights, through its judgments, increasingly has influence on policy areas of critical important to member States and their populations”. 

However, the ECtHR’s conception of the subsidiarity principle, as expressed in its case law, is more nuanced. Dean Spielmann, former President of the ECtHR, has explained that the Convention should not be seen as subsidiary “to State authorities in a broad or general way on traditional sovereignty grounds. Rather, the Convention mechanism is subsidiary to the national systems safeguarding human rights.” As such, subsidiarity requires domestic authorities to establish a national system which implements the Convention effectively. The Strasbourg Court is subsidiary in that it will take a supervisory role and only intervene when national authorities fail in their primary responsibility. 

Therefore, subsidiarity places obligations on state parties, as well as granting them a margin of appreciation to decide how Convention rights may best be implemented. If states want to use the subsidiarity principle to keep the Strasbourg Court at arm’s length, then they must ensure that Convention rights and case law are properly considered in domestic policy making, during the legislative scrutiny process, and when cases are brought before domestic courts. This means that national governments, parliaments, and courts must follow practices and procedures that are designed to secure Convention rights and freedoms, and must provide an effective remedy when those rights and freedoms are violated. The subsidiarity principle is therefore intended to strengthen, not weaken, states parties’ responsibility for protecting Convention rights.

The Government’s consultation document, however, frequently invokes subsidiarity as a rationale for avoiding the obligations placed on the UK under the Convention system. This is ironic given that one of the Government’s main critiques of the Human Rights Act 1998 is that it has apparently led to “a culture of rights” decoupled from responsibilities, and the Government plans to use the Bill of Rights to emphasise “the role of responsibilities within the human rights framework”. 

 

The UK’s record in Strasbourg 

Since the Interlaken Conference/Declaration of 2010 – where State Parties firmly called for a strengthening of the subsidiarity principle – there has been a general growth in the Strasbourg Court’s reference to the margin of appreciation. At the same time, there has been a relatively drastic decline in the number of cases lost by the UK. For example, in the five years leading up to the Interlaken Conference, 2006-2010, the UK lost 84 cases before the ECtHR. In the next five years, 2011-2015, it lost only 34. There are a number of possible explanations for this decline, but the Court’s increased use of the subsidiarity doctrine is likely to be a meaningful factor. Before 2010, the UK successfully defended less than 40% of cases where the margin of appreciation was invoked before the Court, but as of 2021, that percentage had risen to over 50%. Only two countries in the Council of Europe (Denmark and Sweden) successfully defend a higher percentage of margin of appreciation cases.

The UK’s success in defending margin of appreciation cases can likely be explained partly because, as part of the Court’s turn towards subsidiarity, the Court seems to give greater respect to decisions of domestic institutions in countries where there is a strong procedural embedding of the Convention. 

The current Human Rights Act

In the UK, the Human Rights Act 1998 ensures that Convention rights are properly considered and protected domestically, and the country has been described as “a model in terms of subsidiarity thanks to the Human Rights Act”. To take three examples of how the current Act embeds the principle of subsidiarity:

(1)  Section 2 of the Human Rights Act requires UK courts to “take into account” Strasbourg case law.

(2)  Section 3 imposes a strong interpretative obligation for courts to read and give effect to domestic legislation in a way which is compatible with the Convention rights, so far as it is possible to do so. 

 

(3)  Section 19 requires all Government Bills brought before Parliament to be accompanied by a ministerial statement confirming that the Bill’s provisions are compatible with the Convention, or stating the minister’s intention to proceed with a Bill that is likely to be incompatible. Where a Bill raises significant compatibility issues, the Government also publishes an ECHR memorandum as a matter of best practice. This memorandum contains an analysis of the Bill’s provisions that engage Convention rights, and why the Government believes the provisions are compatible with those rights. 

 

The proposed Bill of Rights

The proposed Bill of Rights will severely weaken domestic procedures for securing Convention rights. To take the three examples in the previous paragraph: 

(1)  The Government intends to remove the requirement in section 2 of the Human Rights Act for UK courts to “take into account” Strasbourg case law. Instead, the consultation document proposes inserting a clause in the new Bill of Rights that permits (but does not require) a domestic court to consider relevant case law from the Strasbourg Court, while also stating that domestic courts are “not required to follow or apply any judgment or other decision of the European Court of Human Rights”.

 

(2)  Two possible changes are proposed to the interpretative obligation in section 3 of the Human Rights Act. The first is simply repealing section 3, so that domestic courts are no longer required to read and give effect to domestic legislation in a way which is compatible with the Convention rights. The second is replacing section 3 with a provision which permits a court to interpret legislation compatibly with the rights in the Bill of Rights only where there is ambiguity in the legislation, and only if such interpretation “can be done in a manner that is consistent with the wording and overriding purpose of the legislation”.

 

(3)  The consultation document queries whether the compatibility statements required by section 19 of the Human Rights Act strike the “right constitutional balance between government and Parliament”, or whether they restrict “the space for innovative policies”. The document seeks views on whether there is “a case for change”. 

Therefore, the proposed Bill of Rights will likely undo many of the procedures and doctrines that have been put in place to ensure Convention rights are properly considered by the UK’s Government, Parliament and courts. It may even be partially self-defeating. The principle of subsidiarity will become far less embedded within the domestic legal framework, with the result that the UK may be afforded a far narrower margin of appreciation when defending cases before the Strasbourg Court. This increased scrutiny from Strasbourg will come at a time when it is likely that a growing number of cases from the UK will come before the ECtHR, as a number of options put forward in the consultation document will, if enacted, prevent some people from enforcing their Convention rights domestically. Therefore, the UK is likely to find itself facing an increasing number of adverse judgments from the ECtHR. 

 

Wider implications for Europe

National authorities and the Strasbourg Court appear at times to have different motivations for invoking subsidiarity and the margin of appreciation. For the Court, the principles are a helpful way to ensure that the Convention becomes embedded domestically, and to reduce its high case load. For some member states however - for instance the UK and Denmark - the principles have been used tools to try and limit the involvement of the Court in domestic matters and protect against fears of overreach. 

Despite these different motivations, the Strasbourg Court’s increased use of the subsidiarity principle since 2010 should in theory benefit both the Court and disillusioned states parties that perceive the Court to be overly interventionist. If states properly embed the Convention, then they can benefit from a greater margin of appreciation, and the Strasbourg Court should see a reduced case load. 

However, the Court’s use of subsidiarity to impose, at least in a number of cases, a light-touch supervision on the UK’s human rights regime appears not to have quelled dissatisfaction with the Court amongst the country’s Conservative Government. In the UK’s case, subsidiarity is now being used as a justification for the country to remain a signatory to the ECHR while dismantling its domestic system for protecting Convention rights. In the long run, such a misuse of subsidiarity is likely to be extremely damaging to the legitimacy of the Convention system as a whole. 

 

Katie Lines is a Research Fellow with the Bingham Centre for the Rule of Law. Before joining the Bingham Centre, Katie worked as a human rights lawyer with the civil liberties organisation Liberty.

New ECHR Readings

Please find below a new batch of academic readings from the last few months on the European Convention on Human Rights, the European Court of Human Rights and its case-law:

* Paul Gragl, ‘Kant and Strasbourg on Mandatory Vaccinations’, European Convention on Human Rights Law Review 

‘Mandatory vaccination raises important questions of human rights, especially if moral norms are given effect in legal provisions. I argue – assuming the safety and efficacy of vaccines – that we are under a moral obligation to vaccinate. Although Kant himself was hostile towards vaccinations, his Categorical Imperative exhorts us to respect the autonomy and dignity of others, and if these ‘others’ are the most vulnerable members of society who cannot be vaccinated for medical reasons, we can only protect them by vaccinating ourselves. The ECtHR (implicitly) follows this reasoning in its case law, particularly in its most recent relevant decision, in Vavřička, in which it maintained that even though mandatory vaccination interferes with certain Convention rights, this can be justified in terms of social solidarity and the weighing of interests. We consequently see that in this context, the ECHR system is very much in line with Kant’s notion of morality.’

* Liv N. Henningsen, ‘The Emerging Anti-Stereotyping Principle under Article 14 ECHR’, European Convention on Human Rights Law Review

‘Anti-stereotyping as a legal principle is emerging as a transformative device in European human rights law. In this article, the anti-stereotyping principle in the case law of the European Court of Human Rights (ECtHR) is analysed and discussed. The article employs a multidimensional approach to discrimination and theorises a transformative dimension in relation to the stereotyping cases. First, the early cases on stereotyping are analysed in relation to different theoretical concepts. Thereafter, the Morais case is analysed and discussed in relation to the broader case law. It is argued that the anti-stereotyping principle is instituted more authoritatively in this case but requires further theorisation. Moreover, the comparator assessment is less significant in relation to the anti-stereotyping principle. Finally, it is argued that the ECtHR should be more explicit about intersectionality in its discrimination assessments and avoid essentialism. Aspects of case law are critiqued in this respect.’

* Wei Gao, ‘The ECHR in action: its applicability and relevance for arbitration’, International Journal of Human Rights 

‘Right to fair trial under Article 6.1 of the European Convention on Human Rights has significant bearing on arbitration. Under the jurisprudence of the European Court of Human Rights, an arbitral tribunal is a ‘tribunal’ within the meaning of Article 6.1. The rights recognised by Article 6.1 are subject to partial or full waivers in the context of arbitration, depending on its nature being voluntary or mandatory. To satisfy their Convention obligations, contracting States must exercise effective supervisory jurisdiction in arbitration matters. This may be in conflict with the practice in some contracting States of allowing private parties to contract out the rights to seek the setting aside of arbitral awards or enforce awards that have already been set aside. A survey of all Convention cases between 1955 and 2021 in this regard discloses an overall picture of how the Convention applies to arbitration matters.’

* Sarah Trotter, ‘Hope’s Relations: A Theory of the ‘Right to Hope’ in European Human Rights Law’, Human Rights Law Review, Vol. 22, Issue 2 (2022)

‘In recent years, the notion of a ‘right to hope’ has emerged in the jurisprudence of the European Court of Human Rights. This article offers an account of how this right has been constructed and of how hope is conceptualised in European human rights law. It examines the origins of the ‘right to hope’, the meaning of hope in this context and the relationship that is depicted between hope and dignity. It argues that hope is conceived of here as relational and that one way of thinking about the right to hope in this sense is as a right to recognition. This has two dimensions: one involving the recognition of the individual by others and another involving the recognition of the individual in and through law. The latter implies a certain relationship of dependency between the individual and European human rights law, with hope itself coming to be constructed as an individual responsibility.’

* Kerstin Bree Carlson and Jacob Livingston Slosser, ‘When Religion Speaks: Denmark’s Face Covering Ban and European Human Rights Law’, Nordic Journal of Human Rights, Vol. 39, 2021, Issue 4 (2022)

‘This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.’

Kosovo Applies for Council of Europe Membership

Last week, on 12 May 2022, Kosovo has formally applied for membership of the Council of Europe. For many years, this did not seem a possibility because not all CoE member states recognised Kosovo as a state, but with the new geopolitical situation following Russia's invasion of Ukraine and the ousting of Russian Federation from the Council of Europe, the Kosovar government has apparently assessed the time was right to give it a formal try. While this may be an uphill battle (see a reflection here), it will be for sure very noteworthy to follow whether the Council of Europe will again have 47 member states.

The Council of Europe has been working for years with the Kosovar authorities on a wide range of issues (see an overview here) and one could even speak of de facto partial integration into the Council of Europe's work and normative standards. On addition, the ECHR has been part of parcel of the legal order of Kosovo for a long time too, being applied domestically even if Kosovo so far could not ratify it. This leads to the paradoxical situation that ECHR provisions can be used in Kosovar courts but applications to the European Court of Human Rights are not (yet) possible - one could call this an example of domestication before ratifying. The ECHR is thus not an alien document to the Kosovar legal order.

Webinar on the European Court of Human Rights: Between Law and Anthropology

On 19 May, the Max Planck Institute for Social Anthropology is hosting an online conversation with Professor Jessica Greenberg and Professor Angelika Nußberger on the European Court of Human Rights: Between Law and Anthropology. The event will be moderated by Dr Alice Margaria.

To join the conversation, you can register on this link by 17 May.

Here is the information about the speakers:

Jessica Greenberg is an associate professor of Anthropology at the University of Illinois, Urbana-Champaign. Prior to coming to UIUC, Greenberg was an Academy Scholar at the Harvard Academy for International and Area Studies, and an assistant professor in Communication Studies at Northwestern University. She is the Co-Editor of the Political and Legal Anthropology Review (PoLAR), and is currently working on a book provisionally titled Ghosts in the Machine: Ethnographic perspectives on the European Court of Human Rights.

Angelika Nußberger is professor of international law, public law and comparative law at the University of Cologne and founding director of the Academy for European Human Rights Protection. She also serves as an international judge at the Constitutional Court of Bosnia and Herzegovina, Vice-President of the Venice Commission of the Council of Europe and President of the German Constitutional Lawyers Association (Vereinigung der deutschen Staatsrechtslehrer). She was a judge at the European Court of Human Rights elected on behalf of Germany from January 2011 to December 2019 and its Vice-President from February 2017. She has studied law and literature (German, Russian and French) in Munich, Würzburg, Moscow (1985 study visit) and Boston (visiting researcher at Harvard University 1994/1995). She worked at the Max-Planck-Institute for Foreign and International Social Law in Munich from 1993 to 2002.

Alice Margaria  is a Senior Research Fellow in the Department of Law and Anthropology of the Max Planck Institute for Social Anthropology. Her research interests lie at the intersections of diversity, family law and human rights. Margaria is the author of The Construction of Fatherhood: The Jurisprudence of the European Court of Human Rights (CUP, 2019). She teaches courses on gender and diversity at Free University Berlin, and is currently based at the University of Bayreuth (Germany) as a Bavarian Gender Equality grantee. 

Fully Funded PhD Positions on ECHR and Migration

The Amsterdam Centre for Migration and Refugee Law at Vrije Universiteit Amsterdam is offering two fully funded PhD positions to study the ambivalent role of the European Court of Human Rights as an actor and forum for the human rights turn in legal discourses on migration.

The PhD positions will be part of the project entitled “Who is empowered by Strasbourg? Migrants and States before the European Court of Human Rights”. This is one of ten projects which together form the interdisciplinary research group “Human Rights Discourse in Migration Societies” (Menschenrechtsdiskurse in der Migrationsgesellschaft, MeDiMi). The aim of MeDiMi is to determine the scope, forms and consequences of the expansion of human rights discourse in contemporary migration societies.

The doctoral thesis will be designed as a bi-national PhD between the Vrije Universiteit Amsterdam and JLU Giessen (‘co-tutelle’). The PhD researchers will cooperate closely with the project team located at the Amsterdam Centre for Migration and Refugee Law (ACMRL), and be embedded in a cooperative research consortium with MeDiMi partner institutes in Germany.

The application deadline is 1 June. For further information about the call, click here.

Conference on Systemic Non-Implementation of ECtHR Judgments

The European Implementation Network (EIN) is organising a conference entitled 'Systemic Non-Implementation of Judgments of the European Court of Human Rights - What Can Civil Society Do?' on 22 and 23 June in Strasbourg. While geared towards EIN members, other participants are also welcome and can register here. This is the conference's abstract:

'A key threat facing the system of the European Convention on Human Rights is the non-implementation of judgments of the European Court of Human Rights (“ECtHR”). Of the “leading” judgments handed down from the ECtHR in the last ten years – i.e. judgments identifying structural or systemic problems – 47% remain pending implementation. 

Overall, there are 1300 leading ECtHR judgments pending execution – which have been pending for an average of 6 years and 2 months. Every one of these judgments represents a human rights problem which has not been resolved. Their systemic non-implementation represents a threat to European values and the democratic way of life.

The European Implementation Network (“EIN”) is a network of organisations and individuals from across Europe, working towards the full and timely implementation of ECtHR judgments. EIN sees common barriers to effective ECtHR implementation across different states, including: a lack of political will on behalf of governments (either to implement in particular cases, or to implement ECtHR judgments generally); the absence of effective structures at the national level to systematically promote implementation (such as a high-level working group in the executive or a monitoring committee in the parliament); negative public narratives around ECtHR judgments; and a lack of significant international pressure to implement. 

This conference will use presentations and open discussion to highlight the main barriers to ECtHR implementation, identify common solutions, and share the solutions across European civil society. It will include presentations from leading members of the civil society movement to promote ECtHR implementation, as well as high level speakers from the Council of Europe and national governments. 

Proportion of pending leading cases: the darker the shade of red, the worse the country is at addressing human rights issues when these are identified in judgments of the European Court of Human Rights.

A preliminary list of topics of presentations is found further below. However, we also want to hear from you about the presentations that should be made during the event. This is a subject of critical importance to all who care about the ECHR system. We want the conference to feature the very best solutions to the problem of systemic ECtHR non-implementation. 

Call for Proposals

If you would like to propose a topic of presentation for the event, please send a short email to director@einnetwork.org . If you have a shareable solution to the issue of structural non-implementation of ECtHR judgments – or know someone who does – then it is important for European civil society to hear from you.  

Discussion topics 

A draft list of topics to address the systemic non-implementation of judgments of the European Court of Human Rights is set out below. 

These are currently divided into “bottom up” and “top down” approaches. “Bottom up” solutions are actions taken by civil society and others within each state, to promote implementation by authorities at the national level. These may be considered to be the most important. “Top down” solutions are actions taken by civil society to increase pressure by international bodies on national governments to implement ECtHR judgments. 

“Bottom Up” solutions

• Creating positive narratives about the implementation of ECtHR judgments
• Promoting the Creation of Structural Systems I: Governmental Working Groups with Civil Society Involvement 
• Promoting the Creation of Structural Systems II: Parliamentary Monitoring Bodies
• Monitoring of Structural Systems
• Bringing Government personnel into direct contact with victims 
• Promoting ECtHR judgment implementation in the most difficult contexts: including Azerbaijan, Turkey, and Russia 
• Funding of civil society work in this area

“Top Down” solutions

• Council of Europe I: increased use of infringement proceedings, or a different way to hold states to account?
• Council of Europe II: increases to technical co-operation programmes
• EU Pressure I: inclusion of non-implementation of ECtHR judgments in the EU’s rule of law agenda and dialogue with third countries (including in the EU accession process and in Eastern Partnership relations)'

Online Book Panel on New ECHR Books

On 8 June 2022 at 16h00 CET, an online panel will be organized on “Minimalism vs. Maximalism? Challenges and Future Directions in the Interpretation of the European Convention on Human Rights”, chaired by Professor Eva Brems. It centres on three recent ECHR-related monographs and follows upon an online symposium on the three books over at our colleagues at Strasbourg Observers. One can register for the event on Zoom here. This is the abstract of the event:

'How does, and how should, the European Court of Human Rights interpret and apply the rights protected under the European Convention on Human Rights? The perceived tension between ‘minimalist’ and ‘maximalist’ approaches has remained a focal point in recent developments and debates on the subject. Building on three recently published books which add to, and substantially nuance, these debates, Dr Corina Heri, Dr Natasa Mavronicola and Dr Jens T. Theilen are joined by Professor Eva Brems to reflect on some prominent challenges and potential directions in Strasbourg doctrine in light of and beyond the ‘minimalism-maximalism’ dichotomy. The event follows a symposium hosted by Strasbourg Observers on the three books: 

• Corina Heri, Responsive Human Rights: Vulnerability, Ill-treatment and the ECtHR (Hart, 2021).
• Natasa Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart, 2021).
• Jens T. Theilen, European Consensus between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication (Nomos, 2021).'

Warmly recommended!