New Issue European Human Rights Law Review

The European Human Rights Law Review just published a new issue (Issue 5, 2024). The issue contains one editorial, three research articles, seven case comments and one publication review. The articles focus on the topics of the recognition of a right to family reunification under Article 8 ECHR, the conceptualisation of forced marriage and the proportionality doctrine. Next to the articles there is a case commentary section, with longer as well as shorter case analyses. 

This is the table of contents:

* Kirsty Hughes, Stevie Martin and Stephanie Palmer, 'New beginnings?' (Editorial)

* Alistair Mills, 'Judgement and judgments: the role of courts in proportionality challenges in the United Kingdom' (Article)

* Helena Wray, 'Family reunification and article 8 ECHR: three steps towards a fairer balance' (Article)

* Lisa Grans, 'Conceptualisation of forced marriage in the criminal law context in Europe' (Article)

* Paul Johnson, 'Homophobic hate speech and Article 17 ECHR: the evolving approach of the European Court of Human Rights European Court of Human Rights (Third Section): Decision of 27 June 2023' (Case Comment)

* Alan Greene, 'Yalcinkaya v Turkiye: a chocolate-box judgment or a victory for human rights? European Court of Human Rights (Grand Chamber): Judgment of 26 September 2023' (Case Comment)

* Veljko Turanjanin, 'Expanding the circle of positive obligations: enabling victims of human trafficking to seek compensation in respect of lost earnings from their traffickers European Court of Human Rights (Third Section): Judgment of 28 November 2023' (Case Comment)

* Marie-Hélène Peter-Spiess, 'Disputing legal fatherhood: navigating hurdles and balancing interests European Court of Human Rights (First Section): Judgment of 7 March 2024' (Case Comment)

* Dominika Bychawska-Siniarska, 'War criminals' acquittals and the resulting trauma for Holocaust survivors European Court of Human Rights (Chamber): Judgment of 23 April 2024' (Case Comment)

* Lewis Graham, 'Compensation for miscarriages of justice and the presumption of innocence European Court of Human Rights (Grand Chamber): Judgment of 11 June 2024' (Case Comment)

* James Murray, 'Manifestations of protected philosophical beliefs and academic free expression' (Case Comment)

* Maeve O’Rourke, 'Human Rights and the Care of Older People - Dignity, Vulnerability and the Anti-Torture Norm' (Publication Review)

New Thematic Factsheet on Misuse of Power by States

The Council of Europe's Department for the Execution of Judgments of the European Court of Human Rights has just issued a new thematic factsheet on the role played by Article 18 of the ECHR in the prevention of the misuse of power by States. Here is a description:

'The human rights protection system established by the European Convention on Human Rights safeguards the rights and freedoms of individuals against the actions of states. Article 18 of the Convention plays a central role in preventing the misuse of power by states, ensuring that restrictions on rights and freedoms are applied only for purposes authorised by the Convention itself. Although Article 18 has no independent existence and can only be applied in conjunction with another Article of the Convention or its Protocols, the European Court of Human Rights has used Article 18 as a tool for interpretation of the restriction clauses contained in other provisions of the Convention or its Protocols. Article 18 is rarely invoked, and whilst violations under this provision are rare (to date, only 27 cases out of more than 26,000 in which the Court has found a violation of the Convention), the Court exercises increased diligence in examining allegations of improper motives. 

In cases where violations of Article 18 are established, the execution process can be particularly complex. This is confirmed by the fact that the Committee of Ministers has only initiated infringement proceedings under Article 46 § 4 of the Convention twice2 in its history, and both instances concerned judgments with violations of Article 18. In accordance with the Committee of Ministers’ usual practice, supported by the Court’s reasoning in its two Article 46 § 4 judgments, the principle of restitutio in integrum requires in such cases that all the negative consequences of the abusive criminal/disciplinary proceedings be erased for the applicant. Other required measures focus on the need to prevent a repetition of the abuse of power, either for the applicant or for others. Where the violation reveals a misuse of the criminal justice system, reforms to reinforce the independence of the judiciary and to shield the judiciary as well as the prosecuting authorities from political influence, in particular from the executive, are necessary. 

Even though the majority of Article 18 cases transferred from the Court remain pending full execution before the Committee of Ministers, respondent states have demonstrated their ability to put in place important individual and general measures even in very complex situations. The present factsheet provides examples of measures reported by states in the context of the execution of the European Court's judgments concerning Article 18, where the Committee of Ministers has either considered the measures taken to be sufficient and therefore closed the supervision of the cases or noted positive developments, highlighting the progress made by states in addressing these concerns.'

New ECHR Readings

Please find below a selection of newly published academic readings related to the European Convention on Human Rights and its Court, of the last few month. Enjoy reading!

* Rebecca Lawrence, ‘A Positive Right to Rehabilitation? An Examination of the ‘Principle of Rehabilitation’ in the Caselaw of the European Court of Human Rights’ Human Rights Law Review (2024):

 

‘This article analyses the development and the role of the ‘principle of rehabilitation’ in the European Court of Human Rights’ caselaw on prisoner rights. It will be demonstrated that, outside of the context of whole-life sentences, the impact of the principle on the Court’s reasoning process has been relatively limited, despite increasing reference by the Court to the growing importance of the principle. Further, that the Court allowing the pursuit of rehabilitation to be used as justification for interferences with other Convention rights within its caselaw undermines the link made by the Court between rehabilitation and human dignity. Finally, it is argued that a conception of rehabilitation that is underpinned by human dignity requires recognition of a positive duty on states to provide access to appropriate rehabilitative treatment for all prisoners.’

 

* Juan J. Garcia Blesa, ‘Neoliberal rationality and the rhetoric of sacrifice in the construction of proportionality discourse: a case-study from the European Court of Human Rights’, International Journal of Human Rights (2024):

 

‘Applying a critical rhetorical approach to law, this article revisits the proportionality discourse of the European Court of Human Rights and the socio-political tendencies it reveals in the case of Garib v the Netherlands (2017). The work focuses on the rhetorical management of the conflict between socio-economic public policies and the social rights indirectly protected under the European Convention on Human Rights and its Protocols. The rhetorical construction of proportionality discourse identified is driven by the re-elaboration of themes constitutive of the normative rationality of post-austerity neoliberalism, in particular the individual responsibilisation and sacrifice for the negative consequences of neoliberal socioeconomic policies. The discourse is also supported by elements announcing an authoritarian turn in the deployment of such policies through the connection between economic goals and public order.’

 

* Lore Roels, ‘Rape Myths in the European Court of Human Rights’ Non-Refoulement Case Law on Sexual and Gender-Based Violence’, International Journal of Refugee Law (2024):

 

‘The criminal justice and the refugee/human rights systems operate within different procedural and substantive frameworks. However, analysis of the European Court of Human Rights’ case law reveals a significant parallel between the two, namely judges’ acceptance of ‘rape myths’ in making their decisions. Criminal justice scholarship has defined rape myths as stereotyped and false beliefs about rape (including about victims and perpetrators). This article translates the concept to the refugee/human rights context and extends it to other forms of sexual or gender-based violence (SGBV) as well. It identifies four specific SGBV myths in the court’s non-refoulement case law: non-reporting of SGBV in the country of origin equals non-exhaustion of local remedies or protection (institutional scope: section 4.1); the existence of a private (male) support network suffices to protect an applicant from SGBV (interpersonal scope: section 4.2); resourceful applicants do not need protection against SGBV (personal scope: section 4.3); and any vagueness, incompleteness, or inconsistency in SGBV disclosures indicates a false or exaggerated story (narrative scope: section 4.4). These types of reasoning not only lack evidence-based grounds, but also demonstrate a striking lack of understanding of the nature of SGBV and the protection needs of its survivors/victims. In theory, SGBV has been recognized as a form of ill-treatment deserving protection from refoulement. In practice, however, access to this protection is hindered by a tendency to use SGBV myths in (credibility) assessments of applicants who fear ill-treatment on the basis of SGBV. While the exact meaning of gender-sensitive non-refoulement assessments remains undefined, it cannot entail the practices of SGBV myth acceptance uncovered in this article.’

  

* Dilek Kurban, ‘Authoritarian Resistance and Judicial Complicity: Turkey and the European Court of Human Rights’, European Journal of International Law (2024):

 

‘International courts face growing contestations to their authority. Scholars have conceptualized the forms and grounds of such resistance as well as the response of international courts. Much empirical research has focused on regional courts with human rights mandates. Yet, in focusing on overt resistance, not differentiating between authoritarian and democratic regimes, and depicting courts at the receiving end of resistance, scholarship does not account for discrete forms of resistance tolerated and enabled by courts. In addition, studies on the European Court of Human Rights (ECtHR) base their analyses exclusively on judgments, which constitute a mere 9 per cent of this Court’s jurisprudence. This methodological bias, combined with a time frame limited to the post-2010s when the ECtHR has faced public contestations to its authority, have led to inaccurate and incomplete conclusions regarding the Strasbourg Court’s response to backlash and illiberalism. This article calls for a goal-orientated conceptualization of resistance and a methodology that analyses the ECtHR’s non-judgment jurisprudence in its entirety to reach accurate conclusions on its response to authoritarianism. Based on an in-depth and contextual analysis of the ECtHR-Turkey case, the article puts forth empirically grounded insights on authoritarian resistance and judicial complicity. It argues that authoritarian regimes seek to lessen international courts’ oversight of their policies, not to undermine the authority of these courts as such, and that international courts are not always resilient vis-à-vis authoritarian resistance but can also be complicit with it. The forms of authoritarian resistance and judicial response depend on the institutional set-up of the human rights regime in question as well as the ways in which international courts exercise their review powers. The two phenomena influence and reinforce each other, resulting in the simultaneous or consecutive occurrence of various forms of authoritarian resistance and judicial response depending on the particular political context in which they interact.’

 

* Matthew Saul, ‘Local Authorities at the European Court of Human Rights’, International Journal of Human Rights (2024):

 

‘The high-level Reykjavík Declaration (2023) recognises the importance of local authorities (the lowest tier of administration within a state) for the functioning of the European Convention on Human Rights (ECHR) system. This article seeks to provide a better understanding of the human rights role of local authorities and the potential of the European Court of Human Rights (ECtHR) as a promoter of this role. It examines how local authorities appear in the judgments of the ECtHR and assesses the extent to which they provide clear pictures of local authorities and their role in human rights issues. The analysis draws on a close reading of a sample of cases encompassing a diverse set of states and human rights issues. It shows how the ECtHR’s reasoning indicates what is required of a local authority for a specific set of circumstances, but also the general attributes of local authorities that are conducive to the provision of human rights. For judgments of the ECtHR to promote local authorities as human rights actors, local authorities and their interlocutors need to be able to identify the judgments and the elements of reasoning therein that are of most relevance for their circumstances.’

 

* Lorenzo Acconciamessa, ‘Exporting the Margin of Appreciation: The Role of the European Court of Human Rights in Shaping a General Principle on the Exercise of the International Judicial Function’, The Law and Practice of International Courts and Tribunals (2024):

 

‘It was in 1976 when, in the case of Handyside v. the United Kingdom, the European Court of Human Rights held that the European Convention on Human Rights “leaves to the Contracting States a margin of appreciation”. Forty-five years later, in 2021, Protocol No. 15 entered into force and incorporated the “margin of appreciation” into the Preamble of the ECHR. For a long time, the doctrine has been considered a unique feature of the European human rights system, consistently ignored or explicitly rejected by other international adjudicators. This article aims to assess whether the recent international judicial practice still confirms such a conclusion, or whether the margin has migrated across the case law of different international courts and is, nowadays, a doctrine that can be applied to the assessment of the scope and content of international obligations and to the review of compliance with such obligations in general.’

 

* Ilya Sobol, ‘Glorification of Terrorist Violence at the European Court of Human Rights’, Human Rights Law Review (2024):

 

‘This article examines the European Court of Human Rights’ approach towards restrictions on expression glorifying terrorist violence. This is done by situating the Court’s case law against two objections to respective criminal offences: their inherent overbreadth and their incompatibility with the restraining demands of the ‘harm principle’. In doing so, the article discusses how the ‘harm principle’ relates to the proportionality test and how the Court’s categorisation of expression glorifying violence responds to the objection of overbreadth. In arguing that the tool of categorisation has not been determinative in driving the outcomes in relevant decisions, the article suggests that engaging the existence of a competing public interest and reviewing the admissibility of reasons for such restrictions would appropriately elevate the Convention standard. Finally, the article argues that inconsistencies across decisions are best explained by the Court’s deference-giving practices, particularly in cases involving claims about the recency of terrorist violence.’

 

* Juho Aalto, ‘BinaryTech in motion: The sexgender in the European Court of Human Rights jurisprudence’, Leiden Journal of International Law (2024):

 

‘Sexgender has become politicized by neo-conservative and populist movements in Europe and elsewhere. This article explores how the sexgender binary is foundational to the social and material construction of the non-heterosexual legal subject and unveils binary hierarchies embedded therein. Furthermore, it develops a new materialist methodology called BinaryTech, which exposes the binary formulas of inequality and difference in the Court’s jurisprudence. This new materialist approach, based on Karen Barad’s agential realism, is used to critically examine how differences are produced as stable features of subjects and objects. The human of the Convention being heterosexual is thereby the result, constructed on material-discursive differentiation of non-heterosexuals. The article concludes by describing how new materialist interventions and Nordic feminist perspectives on law can offer valuable insights within the emerging material turn.’

 

* Niels Hedlund, ‘The ECHR and the Positive Obligation to Criminalise Domestic Psychological Violence’ Human Rights Law Review (2024):

 

‘This article explores the scope of the positive obligation deriving from the case law of the European Court of Human Rights (ECtHR) to criminalise forms of domestic psychological violence. This is primarily done by examining the implications of Volodina v Russia (No. 1), Volodina v Russia (No. 2) and Tunikova and Others v Russia regarding the obligation in question. Additionally, this article addresses different legislative approaches towards the criminalisation of domestic violence that have been distinguished by the ECtHR and discusses whether they adequately criminalise domestic psychological violence. Some approaches appear ill-suited as they concern national offences that focus on serious incidents. Domestic psychological violence, on the other hand, can involve a course of conduct consisting of seemingly minor incidents. It is concluded that State Parties should review to what extent such forms of psychological violence are criminalised under their national criminal laws.’

 

* Anja Seibert-Fohr, ‘Public Health as a Community Interest: What Role for the European Court of Human Rights?’, German Yearbook of International Law 2022 (2024).

 

* Ursula Kriebaum, ‘Parallel Proceedings – Investment Arbitration and the European Court of Human Rights’, Austrian Review of International and European Law 2022 (2024).

Call for Papers for 15th Anniversary Strasbourg Observers

On 8-9 May 2025, the Strasbourg Observers Blog will be celebrating its 15th anniversary with a symposium in Ghent, Belgium. For this special occasion, researchers are invited to submit a contribution and reflect on important developments at the Court and/or in the scholarship in the past 15 years. A Call for Papers for the symposium has just been launched. This is the description of the call:

'We welcome abstracts (and panels proposals) that analyse and reflect on important developments in the ECtHR case law and/or scholarship over these past 15 years. When we take a few steps back, and look at this decade-and-a-half, what patterns do we see, and what novelties? What are promising developments, and what are rather discouraging?

We are particularly interested in abstracts that focus on the Court’s ways of reasoning across various thematic areas as well as in abstracts that take a step outside of the Court’s case law and delve into questions about how it operates as an institution. We also welcome abstracts discussing novel approaches and methods (both quantitative and qualitative) in ECtHR scholarship. 

We do not encourage abstracts that merely describe the evolution of a particular line of case law.

Please send your abstract of around 300 words to strasbourgobservers@gmail.com by December 2, 2024 and include your name, affiliation and a short bio. If you wish to submit a collection of abstracts as a complete panel proposal, please indicate the panel convenor and panel title on top of the information requested for individual abstract submission.  

We aim to send out the results of the selection process before the end of the year. Paper presenters will be requested to send in a position paper of 1,500 to 2,500 words by the 1st of May 2025. Selected position papers will be published as a collection on the Strasbourg Observers blog in the weeks following the Anniversary Symposium.'

Hybrid Event on the ECHR and Sports

On Tuesday 29 October at 12:15 ET, the Human Rights Program at Harvard Law School is organizing an event entitled 'The Rights of Athletes and Players: The Role of the European Court of Human Rights in Adjudicating Global Sports Disputes'. During the event Daniel Rietiker (senior lawyer at the European Court of Human Rights) will explore the rights of athletes in global sports disputes and the role of the Court. The event will be hybrid (in person and online participation via Zoom).

This is the description of the event:

'Top-level athletes and players undoubtedly enjoy privileges and a high social recognition, but it is less known that their special status imposes on them also far-reaching additional duties and restrictions. For example, the Olympic Charter limits political and other speech to a large extent. Moreover, instead of bringing their contract, or disciplinary disputes before ordinary courts, they are expected to agree on particular arbitration proceedings, which do not offer all the guarantees of fair trial. This raises the question whether these restrictions can be justified and whether human rights bodies should have a role to play in examining their lawfulness. 

This talk aims at contextualizing the current and potential case law of the European Court of Human Rights in the field of athletes’ rights, in particular concerning the right to fair trial, freedom of expression and religion, as well as discrimination based on various grounds. Remarkably, the jurisdiction of the Court is not limited to European athletes and players.'

For online participation you can register here.

Report on Non-Implementation of European Court Judgments

The European Implementation Network and Democracy Reporting International released their new report entitled 'Justice Delayed and Justice Denied: Non-Implementation of European Courts’ Judgments and the Rule of Law'. It is their third edition, with again the specific focus on the non-implementation of judgments of the European Court of Human Rights and the European Court of Justice in member states of the European Union - and thus with particular relevance for the EU's internal rule of law monitoring. 

Specifically on implementation of Strasbourg judgments, the best functioning state is Sweden, with an excellent record of implementation according to the report. And the five states with the worst record of performance, reflecting very serious problems are Hungary, Malta, Italy, Romania and Bulgaria. Hungary has the highest percentage of non-implemented judgments in the last decade (a staggering 76%) and Romania performs worst in absolute numbers (115 unimplemented judgments). 

This is part of the summary (for more, see here):

'The non-implementation of European courts' rulings by EU member states, which has long been growing into a systemic problem, is now unequivocally recognised as a rule of law matter. Non-implementation undermines the authority and effectiveness of both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The EU member states are bound by the rulings of these courts. Yet, national authorities fail to make their laws and practices consistent with the European Convention on Human Rights and EU law requirements respectively.

Significant gains for the upholding of democratic principles and the rule of law provenly result from effectively implementing the European Courts’ rulings. That notwithstanding, governments' responses to the non-implementation crisis fall short of expectations, often ranging from sluggishness in following the European Courts’ guidance to active resistance thereto and extreme attempts to undermine these courts’ authority. These delays in implementing judgments lead to prolonged rule of law and human rights infringements and have far-reaching consequences for individuals who are denied timely justice.'

New Judge in Respect of Poland Elected

Yesterday, the Council of Europe Parliamentary Assembly elected Ms Anna Adamska-Gallant as a judge to the European Court of Human Rights in respect of Poland for a term of office of nine years. Ms Anna Adamska-Gallant is a Polish lawyer specializing in international criminal law and human rights. She has served as a judge for almost two decades, including almost six years as an international judge in Kosovo where she heard cases on war crimes and crimes against humanity. She holds a PhD in law from the University of Wroclaw. Furthermore, Ms Ms Anna Adamska-Gallant has been involved in various projects with the aim of strengthening the rule of law and supporting judicial reform in Ukraine. She joined the Polish bar in 2019. She thus has a very broad knowledge of and experience in the fields of criminal law, international humanitarian law and human rights.

Congratulations to the new judge elected!

New Elections in the Court

Last week, the plenary of the European Court of Human Rights elected from amongst its midst three judges to new positions. First off, a new Vice-President of the Court was elected: Judge Ivana Jelić, the judge elected in respect of Montenegro. She will start in this capacity on 1 November 2024. In addition, the Court elected two new Section Presidents: Judges Lado Chanturia, the judge elected in respect of Georgia, and Ioannis Ktistakis, the judge elected in respect of Greece. They will take up their duties on the same date. 

Congratulations to all three of them!

New Thematic Factsheet on Rights of Persons With Disabilities

The Council of Europe's Department for the Execution of Judgments of the European Court of Human Rights has just issued a new thematic factsheet on how judgments of the Court have helped to protect and advance the rights of persons with disabilities in many countries.

Here is a brief description:

'The Council of Europe promotes, protects and monitors the implementation of human rights for all, including persons with disabilities. Persons with disabilities are entitled to have access to and enjoy, on an equal basis with others, the full range of human rights protected by the European Convention on Human Rights, the European Social Charter, the United Nations Convention on the Rights of Persons with Disabilities and other international treaties. 

The European Court of Human Rights has enshrined the rights of persons with disabilities in its case-law through a dynamic and evolutive interpretation of the European Convention in the light of the provisions of the United Nations Convention on the Rights of Persons with Disabilities and its fundamental principles of independence, freedom of choice, full and effective participation and inclusion in society, equality of opportunity and human dignity of persons with disabilities.

The European Convention on Human Rights in its interpretation by the Court and other Council of Europe texts, such as the European Social Charter, as well as the standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT),  and the recommendations of the Committee of Ministers, play an important role in encouraging and supporting member states to implement the necessary measures and changes to protect the rights of persons with disabilities. 

The present factsheet provides examples of measures reported by states in the context of the execution of the European Court’s judgments concerning rights of persons with disabilities.'

Special Issue on the Links Between Admissibility and Remedies at the ECtHR

I am very happy to announce that the European Convention of Human Rights Law Review has just published our special issue on 'Heads and Tails’: Admissibility and Remedies at the European Court of Human Rights' (Vol. 5, Issue 3, 2024). 

The special issue was guest edited by my great colleagues professors Janneke Gerards, Mads Andenas and myself (Antoine Buyse). It is based on the insights and discussions of an authors workshop we organised at Utrecht University, in a collaboration between the Montaigne Centre for Rule of Law and Administration of Justice, the Netherlands Institute of Human Rights (SIM) and Oslo University. 

This is what the special issue is about: 

A relative gap in ECHR scholarship is the interface of substantive matters and rather more procedural and institutional issues. Similarly, little attention has been paid to the interconnectedness between this interface and the wider debates about the nature of the Court as mainly or even only serving individual or, by contrast, constitutional justice. To our minds, it is important to connect the dots to see the overall picture of the developments in the Convention system.

To solve this gap in scholarship, this special issue focuses on a number of seemingly purely procedural issues that are closely intertwined with the substance of the Convention rights and the wider debates surrounding the Court’s functions. Our point of departure is that admissibility issues at the Court – metaphorically the ‘heads’ – and remedies – the ‘tails’ – mutually influence and shape not just the Court’s judgment of the merits – the ‘body’ of cases in Strasbourg – but also each other. Thus, in a variation on the old Egyptian and Greek legend of Ouroboros [see picture], the serpent eating its own tail and thus forming a cycle, we contend that the heads and tails of procedures before the Court are more closely connected than may seem at first sight. The way these connections are given shape and are perceived are central to this special issue.

These are the contents of the special issue:

* Janneke Gerards, Antoine Buyse and Mads Andenas, '‘Heads and Tails’: Admissibility and Remedies at the European Court of Human Rights' (introductory article to the special issue)

* Marco Fisicaro, 'Novel Approaches to Interim Protection Against Systemic Threats to the Rule of Law'

* Mathieu Leloup, 'The Question of Non-Independent Apex Courts as Effective Remedies to be Exhausted'

* Lorenzo Acconciamessa, 'Two Birds With One Stone? Governments’ Unilateral Declarations Before the ECtHR and the Reopening of Domestic Proceedings'

* Anne Bombay, 'The Court’s Correcting Mechanism: ‘General Measures’ as a Judicial Remedy to Address Legislative Inaction?'

* Joseph Finnerty, 'How Should the European Court of Human Rights Remedy Violations of Article 18 echr? The Case for Remedial Realignment'

*Corina Heri, 'Too Big to Remedy?: What Climate Cases Tell Us About the Remedial Role of Human Rights'

Both our introductory article and several of the other articles are open access. Many thanks to the journal and all participating authors as well as the journal's editors!