Public Lecture on Positive Obligations under the ECHR - Within and Beyond Boundaries

On 10 March, the University of Liverpool is hosting an online public lecture by Dr. Vladislava Stoyanova on Positive Obligations under the European Convention on Human Rights - Within and Beyond Boundaries. Here is a brief description of the event.

The development of positive obligations has been one of the hallmarks of the work of the European Court of Human Rights (ECtHR or the Court) in interpreting the European Convention on Human Rights (ECHR). Various issues from various spheres of life have been reviewed by the Court as involving possible breaches of positive obligations. Given the extensive regulatory functions of the State and the enormous breadth of state activities, any harm could potentially be a ground for making an argument that the State failed to fulfil its positive human rights obligations by failing to prevent or mitigate harm or risk. As a result, it is rather unclear under which conditions positive obligations may be triggered and how far-reaching they may be, given how difficult it is to draw the boundaries of state responsibility for omissions. The difficulties in determining and delimiting the role of the State in the contemporary society contribute to this uncertainty.

The lecture will address these challenges by identifying the key analytical issues that need to be considered in determining whether a State is responsible under the ECHR for omissions. The focal question is whether and how omissions by the State can be conceptualised into failures to fulfil positive obligations. In addition to this technical analytical question, the project also reflects upon what is at stake for the political community when the triggering, the content, and the scope of positive human rights obligations are determined. A central question is then how the search for a balance between intrusion and restraint by the State, between protection and freedom from invasion, defines this community and pulls the analysis of state responsibility for omissions in different directions.

One of these key analytical issues is the competition between obligations. In particular, positive human rights obligations can compete, and even conflict, with other human rights obligations, both positive and negative. This is important since protection might lead to diversion of resources, potentially in breach of other positive obligations, and unjustifiable forms and levels of intrusiveness and coercion that might be in breach of negative obligations. The latter can be particularly disturbing in light of the tension between obligations that constrain state power (negative obligations) and obligations that mandate state power or demand its more expansive exercise (positive obligations). These tensions are relevant all the time when positive obligations are at stake, although they not always explicit in the Court’s reasoning. The tensions imply that the more the State protects certain interests, the less it might be able to protect and the more it might interfere with other interests.

The specific concern will be then how competing human rights obligations owned by the State need to be taken into consideration in the determination of the scope and the content of positive obligations, so that a possible protective overreach can be prevented. The speaker will first explain that obligations need to be specified so that tensions and competitions between obligations become cognizable. Once competing obligations become cognizable, they should be denoted a distinctive and special role (in contrast to competing general public interests) in the assessment of the reasonableness of the positive obligations. Then it will discuss considerations that can be relevant to addressing the tension between positive obligations and other (both positive and negative) human rights obligations corresponding to absolute, strictly qualified and qualified rights. These considerations include respecting the equal moral status of each affected individual, the relative importance of the affected interests grounding rights as related to the relative importance of the corresponding obligations, whether actions or omissions form the content of the obligations, and the determinacy of the harm and the affected individuals. Finally, while acknowledging the difficulties, it is proposed that the obligations can be farmed in such a way in terms of content and scope, so that accommodation is possible.

Here is the registration link: https://www.eventbrite.co.uk/e/positive-obligations-under-the-european-convention-on-human-rights-tickets-254397498767.

New Book: Putting Human Rights to Work

Philippa Collins, a lecturer at the University of Bristol, has published a book entitled Putting Human Rights to Work: Labour Law, the ECHR, and the Employment Relation (with Oxford University Press). 

Here is a short description of the book:

"The very existence of an employment relationship places the human rights of a worker at risk. Employers can, and frequently do, exercise their managerial and disciplinary powers in a manner that interferes with the most fundamental rights of the individual worker. Adequate safeguards against such infringements are necessary if individuals are to receive full protection of their rights. This book examines how far the labour laws of England and Wales offer such guarantees, with a particular focus on dismissal law. The chapters reflect on the relationship between employment, labour, and human rights before conducting a detailed and critical analysis of the scope, shape, and application of domestic employment law. The framework for evaluation is drawn from the case law of the European Court of Human Rights, as it develops a principled and tailored approach to how the rights contained in the European Convention on Human Right should be enforced in working relationships. Statutory mechanisms, such as the law of unfair dismissal, and common law causes of action are examined and found to be lacking in their capacity to vindicate and enforce the human rights of workers. This book culminates in the proposal and elaboration upon an innovative solution, the Bill of Rights for Workers, that would draw on the successes of human rights and labour law instruments to render the Convention rights directly enforceable in the relationship between a worker and their employer."

EIN Colloquium on Implementation of Judgments in French

On 18 February, the European Implementation Network (EIN) in Strasbourg is organising an in-person colloquium on how NGOs and NHRI can effectively participate in the supervision process of implementation of judgments of the European Court of Human Rights. The event will take place in French. More information can be found here and this is the announcement of the event by the organisers:

'Les arrêts de la cour Européenne des Droits de l’Homme (CEDH) impliquent souvent, au-delà des mesures individuelles concernant la victime, la mise en œuvre de mesures générales – de nature législatives ou autres - qui ont un impact fort sur l’état des droits humains de tout un chacun dans un Etat. De par leur expertise et leur connaissance du terrain, les ONG et INDH, mais également les organisations professionnelles telles que Conseil des Barreaux ou Syndicat des avocats, sont parmi les mieux placées, à côté des autorités étatiques, pour formuler des recommandations sur les mesures substantielles nécessaires à la bonne exécution d’un arrêt, qui permettront d’éviter des violations identiques à l’avenir. En ceci, la participation des ONG, INDH et organisations professionnelles au processus de supervision de l’exécution des arrêts de la CEDH constitue un élément important pour la protection de l’Etat de droit en Europe, et dans l’UE en particulier.

Pour autant, la participation de ces structures au processus de supervision des arrêts de la Cour reste encore très limitée – seules 5-7% des affaires en ont bénéficié la dernière année – et le processus en tant que tel, ainsi que son potentiel pour la protection de l’Etat de droit dans l’UE, reste méconnu.

Ce Colloque a pour but de sensibiliser et former ONG, INDH et organisations professionnelles au rôle clef qu’elles peuvent et devraient jouer pour accompagner une meilleure exécution des arrêts de la CEDH, et de formuler un Appel, enrichi de recommandations concrètes, envers les institutions européennes, afin que ce volet soit dûment pris en compte dans les rapports et politiques de l’UE en faveur de l’Etat de droit. Un élément essentiel sera l’appel à une plus grande prise en compte des besoins de financements des ONG/INDH dans le cadre du programme « Citoyens, égalité, droits et valeurs », et du volet « Valeur de l’Union » qui est au cœur de ce programme. L’Appel et ses recommandations seront relayés par l’EIN sur la plateforme de la Conférence sur l’Avenir de l’Europe.'

The New Year and What is Coming up at the Court

First off, our very best wishes for the new year to all our readers for 2022! Before focusing on a number of matters ahead in the ECHR system, one decision emanating from the Court in the last days of 2021 also deservers attention. So, we start the year with a number of notifications:

1. As the Court announced in one of its last press releases of last year, the much contested dissolution of Russia's oldest human rights NGO Memorial will be reviewed under the ECHR. In the meantime, and as far as we are aware, applying interim measures for the first time in a freedom of association case, the Court requested Russia to suspend enforcing the domestic court decision to close the NGO and its affiliates. This is the message on the ECtHR's own website: 

'On 28 and 29 December 2021 respectively, the International Memorial and the Memorial Human Rights Centre reiterated their request to the European Court of Human Rights under Rule 39 of the Rules of Court to apply an interim measure to prevent their forced dissolution following the adoption of the judgments of 28 and 29 December 2021 by the Supreme Court of Russia and by the Moscow City Court, respectively.

The Court has decided to indicate to the Government of Russia, under Rule 39, that in the interests of the parties and the proper conduct of the proceedings before it, the enforcement of the decisions to dissolve the applicant organisations should be suspended for a period that would be necessary for the Court to consider the application.'

2. Looking ahead, this month will witness one of the Court's most awaited hearings of recent times, the one in the inter-state case Ukraine and The Netherlands v the Russian Federation. Inter-state cases are rare and always very sensitive. The hearing was already deferred from last year and the cases focuses on the downing of infamous Malaysia Airlines flight MH-17 in 2014 above Ukraine during the armed conflict there. Meanwhile, the criminal case against four main suspects in absentia is progressing in Dutch domestic courts, in parallel. The hearing in Strasbourg is now scheduled for 26 January. 

3. And finally, a crucial change for potential applicants will enter into force on 1 February. From then on, the time-limit for submitting a complaint in Strasbourg will be reduced from 6 to 4 months after exhausting domestic remedies. This is the most visible change resulting from the entry into force of Protocol 15 ECHR last year, of which the transition period ends in a few weeks. New applications submitted after 1 February can only be declared admissible if they comply with this new time limit. 

Last post of 2021: Covid, Architects and Spaghetti Monsters

Dear readers, as another Covid-19 year slowly grinds to a halt, this is the last post of 2020, as this blog will take a Winter break. 

For the European Court of Human Rights this was another challenging year, with what we could call the start of a substantive Covid-19 case-law line, relating to such issues as freedom of movement and mandatory vaccination. No doubt, there will be more to come. And the general human rights situation within the ECHR's geographical reach remains worrying, with new judgments finding violations of Article 18 ECHR for example and a continuing series of cases about (the lack of) judicial independence. Enough reasons for this blog to continue following Strasbourg developments in the year ahead.

It was also the year in which the architect of the Court's current, iconic building passed away: Sir Richard Rogers. And also, to end with a comic note, the year in which Pastafarianism, the movement venerating the Flying Spaghetti Monster, was not recognised as a religion under Article 9 ECHR by the Court. 

We wish all our readers a good holiday season and a healthy 2022!

Antoine Buyse and Kushtrim Istrefi, co-editors of the ECHR Blog

Academic Freedom in Turkey before the Strasbourg Court: A Third Party Intervention by a Coalition of Academic Interveners

This week a coalition of academics, including this blog's editors, has submitted a third party intervention to the European Court of Human Rights in the so-called 'Academics for Peace' cases.

The background of these cases is the following: in the wake of the failed coup d'état of July 2016, the Turkish Government has employed emergency measures not only to re-establish peace and order, and to deal with those directly responsible for the coup d'état, but also to silence and in many cases attack, among others, journalists, academics or minorities. These systemic attacks undermine the overall academic freedom in Turkey.

This currently pending group of applications before the European Court of Human Rights, the 'Academics for Peace' cases (Kamuran AKIN v. Turkey and 42 other applications, applications nos. 72796/16, 72798/16, 72799/16 et al.), illustrate this. The cases concern a group of academics from different Turkish universities who on 11 January 2016 issued a statement entitled “We will not be a party to this crime”, which critically questioned the Turkish Government’s role in the conflict in South-East Turkey and the associated serious human rights violations. President Erdoğan accused them of treason, and hundreds of academics, including the applicants, were then dismissed from their university positions through a series of emergency decrees. 

The group of academics who submitted the third-party intervention before the European Court of Human Rights addresses the connection of the cases with academic freedom and elaborates on the importance of academic freedom in and for the Convention system. The third party intervention was presented by Professors Helen Duffy and Philip Leach (co-supervisors in the Turkey Litigation Support Project) on behalf of a group of 19 academics, including the co-editors of this blog (Antoine Buyse  and Kushtrim Istrefi).

New Book: Framing a Convention Community

Cedric Marti of the University of Zurich has published a book entitled Framing Convention Community: Supranational Aspects of the European Convention on Human Rights (with Cambridge University Press). 

Here is the book abstract:

'The European Convention on Human Rights (ECHR) has evolved from an international agreement into a highly integrated legal community with an ever more pervasive effect on domestic law and individuals. The supranational authority of the European Court of Human Rights bypasses the national state in a growing number of other areas. Understanding the evolution of the ECHR and its Court may help in explaining and contextualising growing resistance against the Court, and in developing possible responses. Examining the Convention system through the prism of supranationality, Cedric Marti offers a fresh, comprehensive and interdisciplinary perspective on the expanding adjudicatory powers of the Court, including law-making. Marti addresses the growing literature of institutional studies on human rights enforcement to ascertain the particularities of the ECHR and its relationship to domestic legal systems. This study will be of great value to both scholars of international law and human rights practitioners.'

Secretary General Inquires on the Situation in Poland: A Test for Poland and Article 52 ECHR

On 24 November 2021, the Polish Constitutional Court issued a ruling that challenged both the authority of the European Court of Human Rights to decide on the lawfulness of appointment of judges in national courts, and the standards of fair trial under the Convention. In response to this worrying development, on 7 December 2021, the Secretary General of the Council of Europe requested the Polish Government “to furnish explanations concerning the manner in which [its] … internal law ensures the effective implementation of Article 6 and 32 of the Convention following the judgment of the [Polish] Constitutional Court of 24 November in the case K 6/21”. 

 

The Secretary General explained that the legal basis for this inquiry is based on Article 52 of the Convention, which provides that “[o]n receipt of a request from the Secretary General … any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention”. 

 

A textual interpretation of Article 52 ECHR (e.g. words ‘shall furnish’) suggests that Poland is obliged to provide in due time all the necessary information requested by the Secretary General. It has also been observed in the past that when the Secretary General triggers Article 52:

 

The State has the obligation to provide truthful explanations... The State has an obligation of result to provide explanations about the effective implementation of the Convention in its internal law: the State cannot, therefore, confine itself to providing explanations of a formal nature. On the contrary, bearing in mind also the obligation to execute treaty obligations in good faith …, a State has the obligation to furnish precise and adequate explanations which make it possible to verify whether the Convention is actually implemented in its internal law. This necessarily implies that the State must furnish information of a sufficiently detailed nature about the national law and the practice of the national authorities, in particular the judicial authorities, and about their conformity with the Convention as interpreted in the case-law of the European Court of Human Rights.

 

Poland was asked to answer to the Secretary General no later than 7 March 2022. It remains to be seen how or if Poland will respond to this inquiry. The Secretary General may again follow up with Poland on this or other issues concerning the Convention given that Article 52 does not prevent the Secretary General from making further inquiries with State parties to the ECHR.

 

It must be noted that Article 52 has scarcely been used in the past and remains a rather under researched provision. There seem to be no clear procedures on how and when the Secretary General issues inquiries under the ECHR, or what happens if a State does not provide timely  and truthful explanations to the Secretary General. The aim of Article 52 is also rather vague. Article 52 was inspired by a draft article on the UN covenants that provided for ‘a right to interrogation’ when States do not comply with human rights. Yet, this does not imply that the Secretary General may or should use Article  52 to ‘interrogate’ States. The Secretary General may strategically decide to employ it in order to engage in a form of dialogue with States.

 

In light of the foregoing, the outcome of the Secretary General’s inquiry on Poland may prove to be important not only for the present case, but also for the future potential of Article 52 ECHR.

New Book on the ECtHR and European Public Order

Kanstantsin Dzehtsiarou of the University of Liverpool has just published a new book with Cambridge University Press, entitled Can the European Court of Human Rights Shape European Public Order? It is available as print book and in electronic version. This is the abstract: 

'In this book, Kanstantsin Dzehtsiarou argues that, from the legal perspective, the formula 'European public order' is excessively vague and does not have an identifiable meaning; therefore, it should not be used by the European Court of Human Rights (ECtHR) in its reasoning. However, European public order can also be understood as an analytical concept which does not require a clearly defined content. In this sense, the ECtHR can impact European public order but cannot strategically shape it. The Court's impact is a by-product of individual cases which create a feedback loop with the contracting states. European public order is influenced as a result of interaction between the Court and the contracting parties. This book uses a wide range of sources and evidence to substantiate its core arguments: from a comprehensive analysis of the Court's case law to research interviews with the judges of the ECtHR.'

Online Training on Combating Violence Against Women and Domestic Violence and the ECHR

The European Implementation Network is organising a free online training on 16 December on the topic 'Combatting violence against women and domestic violence by supporting the implementation of judgments of the European Court of Human Rights'. It is aimed at practitioners and will be held in English with a possibility of simultaneous interpretation into Russian if the need arises. The full programme can be found here and the organisers kindly ask potential participants to register before the end of this week (so before 3 December) here. This is the abstract of the training:

'Violence against women and domestic violence (“VAW/DV”) are grave violations of human rights and forms of discrimination. They occur in every Council of Europe member state, despite some positive developments in law, policies and practices. Shortcomings in domestic legal frameworks, the lack of specialized social services and discriminatory practices and attitudes have all been contributing to the perpetuation of domestic violence. The coronavirus is exacerbating the issue. The forced cohabitation of many families around the world has shown signs of a real ‘emergency in an emergency’. 

Governments have a responsibility to respect, protect and fulfil the human rights of all their citizens. However, in the area of violence against women and domestic violence, many are failing to carry out the reforms necessary – and will only do so as a result of sustained pressure at the national and international levels. 

Judgments from the European Court of Human Rights (“ECtHR”) have an invaluable role to play in pushing authorities to make the necessary reforms. Nevertheless, in order for effective reforms to result from the ECtHR implementation process, it is often essential that actors on the ground are empowered to actively engage in the process for implementing the judgment. 

On 16th December, EIN will organise an online training dealing with the implementation of ECtHR judgments in the field of VAW/DV. This online training is a core element of an EIN project supported by the Permanent Representation of Luxembourg to the Council of Europe. The project aims to provide comprehensive support to specialist organisations, to ensure that they can effectively contribute to the ECtHR implementation monitoring system, in every country where there is an ECtHR judgment concerning domestic violence pending implementation. The objective of the training is to sensitize expert organisations about the importance of their contribution to the implementation of judgments in this area, and equip them with tools on how to make best use of the supervision process.'