Protocol 15 Ratified by all Contracting Parties to the ECHR

As of 21 April 2021, all Contracting Parties to the ECHR have ratified Protocol 15. It will enter into force on 1 August 2021. The Protocol was adopted in 2013, so it took eight years for all States to ratify it. Italy was the last State to complete the ratification process of the new protocol.

Protocol 15 introduces important changes to the Convention system. These changes, in brief

– add a reference to the principle of subsidiarity and the doctrine of the margin of appreciation to the Preamble of the Convention;

– shorten from six to four months the time limit within which an application must be made to the Court;

– amend the ‘significant disadvantage’ admissibility criterion to remove the second safeguard preventing rejection of an application that has not been duly considered by a domestic tribunal;

– remove the right of the parties to a case to object to relinquishment of jurisdiction over it by a Chamber in favour of the Grand Chamber; and

– replace the upper age limit for judges by a requirement that candidates for the post of judge be less than 65 years of age at the date by which the list of candidates has been requested by the Parliamentary Assembly.

The Explanatory Report and the Opinion of the Court on Protocol 15 can be found here and here.

Protocol 15 is seen as part of the reform of the Court. Reform, however, means changing things for good. A question remains who benefits from these changes. While the Court’s efficacy may be enhanced through the new institutional and procedural changes brought by the new protocol, and States may feel more ensured with the new reference to subsidiarity and margin of appreciation, one may argue that victims of human rights violations are the least direct beneficiaries of this change taking into account that, among others, it further limits their time to lodge a complaint before the Court.

Frédéric Krenc Elected New Judge in Respect of Belgium

Yesterday, the Parliamentary Assembly of the Council of Europe (PACE) elected Frédéric Krenc as the new judge in respect of Belgium. Mr Krencs was elected by absolute majority, right away in the first round, receiving 148 of 262 votes. 

Mr Krenc is a practising lawyer from Brussels - and thus a relatively rare choice as most judges in the European Court either come from judicial practice or from academia. Next to a distinct expertise in sports law, he is very well-versed in human rights. In fact, in his studies already he did research about a still living issue: 'to what extent are EU Member States liable under the European Convention on Human Rights for actions by the European Union?'. Since 2014, he has also been the editor-in-chief of one of the leading French-language journals on human rights, the Revue trimestrielle des droits de l’homme. He can truly be said to actively have committed himself to the further increase of ECHR knowledge among his fellow practising lawyers, both in his function of Secretary General of the Human Rights Institute of the Brussels Bar as well as in advising and training lawyers on the ECHR. He has organised numerous academic and professional seminars on the ECHR as well as published articles on the subject and knows a number of his future colleagues from those activities. He has been a visiting lecturer at various universities and also has judicial experience acting as a judge-arbitrator at the Belgian Court of Arbitration for Sport. And finally, and very significantly, he has extensive experience in bringing human rights cases to international institutions, including the Court of Justice of the European Union, the United Nationans Human Rights Committee and, most notable, he has brought and participated in over 200 cases at the European Court of Human Rights. A truly multi-faceted expert who can bring all that experience to bear in Strasbourg.

After a selection process at the national level in which a specially composed selection board interviewed 18 candidates, it selected those most fitting, amongst others, criteria like 'their specialist qualities, as evidenced by practical experience of human rights law, a university education, research and/or works published, and personal commitment to the values embodied in the European Convention on Human Rights.' After this selection, the Belgian government put forward a list of three candidates to PACE: a legal adviser from an NGO, a professor and a practising lawyer. In what could be called a typically Belgian weighing of the interests of the different communities and constituencies, this time the three candidates put forward have, as noted in the press, French as their first language (whereas it was Flemish the last time round). Mr Krenc speaks both French, Dutch and English it should be noted. 

The selection may have led to a smooth sailing in Strasbourg, with the plenary Assembly in the first round confirming the recommendation by its own committee, in Belgium itself the choice was more contentious. The currently governing and often-called 'Vivaldi' coalition, consisting of four different political party ideologies (thus the reference to Vivaldi and his Four Seasons) was perceived to innovate. In the Belgian press it was noted that the government was submitting a list with three specialists, who were relatively progressive and young, to Strasbourg. Especially the latter was noted as a clear break with the past, as thus far most judges elected in respect of Belgium in Strasbourg were quite experienced national senior judges. This may fit with the image the relatively new Belgian government itself wants to convey. Maybe not surprisingly, this drew criticism from more conservative circles in Belgium, where - quite outrageously - even the fact that the government put forward a list in which the majority of candidates were women was seen as political; a sad comment in the 21st century to qualify that as a negative!

He will succeed the current and very esteemed judge Paul Lemmens, who currently also heads one of the Sections of the Court. As judge Lemmens' term of 9 years started on 13 September 2012, Mr Krenc will succeed him starting on 13 September of this year. Good luck to the new judge!

On a different note, PACE has sent back the list of three candidates put forward by Poland.

ECHR MOOC Starts Again on 4 May

Utrecht University's free Massive Open Online Course (MOOC) on the ECHR is starting again on 4 May 2021. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by myself (Antoine Buyse) and my Utrecht University colleagues professor Janneke Gerards and Claire Loven. This is the abstract of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:

PACE Meeting on Navalny, Covid-19 Vaccination, Election of ECtHR Judges and More

From 19-22 April 2021, the Parliamentary Assembly of the Council of Europe (PACE) will meet to discuss a number of urgent issues. 

The following items in the agenda are relevant for the the Convention system as a whole:

- The arrest and detention of Alexei Navalny in January 2021

- The functioning of democratic institutions in Turkey

- Covid passports or certificates: protection of fundamental rights and legal implications

- Armenian prisoners of war, other captives and displaced persons

- Covid-19 vaccination certificates: how to protect public health and human rights?

- Russian threat to the pursuit of peace in Europe

In addition, PACE will vote on the election of the judge in respect of Belgium. The three candidates in respect of Begium include Ms Maïté de Rue, Mr Frédéric Krenc, and Ms Sylvie Sarolea.

PACE will also discuss a number of other important topics, and will feature, among others, a speech by Angela Merkel, the chancellor of Germany.

PACE meeting starts today at 11:30, and will be streamed live here.

New Book on European Consensus between Strategy and Principle

Jens T. Theilen has published with Nomos a book titled European Consensus between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication. The book is open access and can be downloaded for free here.

Here is a short abstract of the book:

'This study offers a critical account of the reasoning employed by the European Court of Human Rights, particularly its references to European consensus. Based on an in-depth analysis of the Court’s case-law against the backdrop of human rights theory, it will be of interest to both practitioners and theorists.

While European consensus is often understood as providing an objective benchmark within the Court’s reasoning, this study argues to the contrary that it forms part of the very structures of argument that render human rights law indeterminate. It suggests that foregrounding consensus and the Court’s legitimacy serves to entrench the status quo and puts forward novel ways of approaching human rights to enable social transformation.'

Webinar on the European Court of Human Rights: Navigating Turbulent Relationships with States

On 14 April 2021, the Garden Court North Chambers in association with the University of Manchester and the Accountability Unit are hosting a webinar on the European Court of Human Rights: Navigating Turbulent Relationships with States.

Here is the description and programme of the webinar provided by the organisers:

'This webinar will focus on the European Court of Human Rights, which is currently under intense scrutiny as are human rights generally. From Britain in the West to Russia in the East previously unchallenged international laws and norms are being contested. Turkey’s relationship with the Court, arguably, personifies and encapsulates the challenges for the Court and the consequences for victims of rights violations. Is there a balance to be struck and how might it be achieved? What are the implications for other States? Are there more radical solutions?

The webinar will be chaired by Leto Cariolou, Associate Member of Garden Court North Chambers and hosted by Işıl Aral from Manchester University’s International Law Centre who together with our panel of speakers will talk focus on the relationship between the European Court of Human Rights and Turkey. They will also address the Court’s response to the emergency measures adopted in Turkey following the coup of 15 July 2016 that tried to seize power and overthrow President Erdogan.

Speakers

Michael Ivers QC – Barrister, Garden Court Chambers, London – will provide an analysis of the Court’s case law in the context of national emergencies and the difficult considerations it faces.

Ezgi Basaran – Journalist Radikal Newspaper; Research Associate, University of Oxford – will present on the magnitude of the emergency measures in Turkey, the impact of the measures on ordinary people and, in particular, on press freedoms.

Hasan Bakirci – Deputy Registrar, Section II, European Court of Human Rights – will discuss the challenges the Court faces and the particular difficulties in respect of the situation in Turkey today.

Clare Ovey – Head of Department of Execution of Judgments of the European Court of Human Rights, Council of Europe – will present on what happens after a judgment. How are decisions enforced and what challenges are faced in the execution of the Court’s judgments.'

The registration form is here.

ESIL & iCourts Conference on the European Court of Human Rights

The interests groups on International Courts and Tribunals and International Human Rights Law of the European Society of International Law (ESIL) are co-organising with the iCourts Centre of Excellence at the University of Copenhagen the online conference 'The Influence, Legacy and Future of the European Court of Human Rights in the International Legal Order'. It will be held on 8 June 2021. This is the summary of the event in the organisers' words:

'This year the European Convention of Human Rights celebrates 70 years since its adoption. The European Court of Human Rights – the body responsible for enforcing the Convention across 47 Member States of the Council of Europe – is regarded as one of the most successful and impactful international courts. The Court has played a major role in interpreting and clarifying the text of the Convention and in positioning the Convention in the domestic legal orders of Member States. Yet, the Court’s case law has also importantly influenced other regional and international courts and tribunals, specifically the interpretation of international criminal law, humanitarian law, the law of immunity, migration and refugee law as well as opened up challenges posed by conflicting obligations arising from other international treaties. Against this background, the online webinar will explore the influence, legacy and future of the European Court of Human Rights in the wider international legal order.'

And here is the full programme:

Keynote Address (9.30 – 10.15 AM (all times CET))

Professor Mikael Rask Madsen, Director of iCourts, Centre of Excellence for International Courts, University of Copenhagen, 'The Narrowing of the European Court of Human Rights: Legal Diplomacy, Situational Self-Restraint and the New Vision of the Court'

Panel 1 - ‘Strasbourg on the international plane’ (10.30 -12.30 PM) 

Evangelia Vasalou, Research assistant at the Fondation René Cassin, International Institute of Human Rights, 'Cultural identity in the case-law of international human rights courts – Convergences and divergences'

Dr Zena Prodromou, Senior Associate, Quinn Emanuel Urquhart & Sullivan LLP, 'The Influence of the ECHR on the Jurisprudence of International Courts and Tribunals Applying Exceptions Provisions for the Protection of the Public Order'

Dr Cornelia Klocker and Deborah Casalin, Postdoctoral Fellow, University of Konstanz, Phd Candidate at Antwerp University 'The ECtHR, Discrimination and Conflict : Exploring CERD as an Alternative Forum'

Gustavo Minervini, PhD Candidate in International Law, University of Naples, 'The Influence of the Jurisprudence of the ECtHR on the Interpretation of Core International Crimes by International Courts and Tribunals'

Panel 2 - ‘Strasbourg and the EU’ (13.30-15.00 PM)

Jesse Claassen, Assistant Professor of European Law, Open University of the Netherlands, The ECtHR’s Position Within the EU Legal Order : The Domestic Courts’ Perspective

Dr Tamas Molnar, Legal Research Officer, EU Fundamental Rights Agency, 'The Impact of the ECtHR case-law on the CJEU interpreting the EU’s return acquis : more than what you first see ?'

Janja Simentić Popović, University of Belgrade, 'Patterns in the usage of the ECtHR Jurisprudence by the CJEU in the field of Asylum'

Panel 3 - ‘What Strasbourg has to offer’ (15.15-17.15 PM)

Professors Larry Helfer and Clare Ryan, Duke University School of Law; LSU Paul M. Hebert Law Center, 'Contesting LGBT Rights in International Courts: The role of the ECtHR'

Dr Maria Variaki, Lecturer in international law at the War Studies Department, King's College London, 'The so-called intellectuals and human rights activists'

Dr Cristina Teleki, University of Bern, 'The European Court of Human Rights – Center Stage in the Conversation on Bigness?'

Silvia Steininger, Research Fellow, MPI Heidelberg, 'Talking to Strangers ? Outreach and Communication Practices of the ECHR'

Closing Remarks (17.15 PM)

You can register here.

New Book on Judge Pinto de Albuquerque and the Progressive Development of International Human Rights Law

Triestino Mariniello (Liverpool John Moores University) has edited a book Judge Pinto de Albuquerque and the Progressive Development of International Human Rights Law, published with Brill | Nijhoff. This is the book abstract:

'This is the first English written book that includes the most significant opinions of Judge Paulo Pinto de Albuquerque delivered at the European Court of Human Rights. He was the President of the Committee on the Rules of the Court, the President of the Criminal Law Group of the Court and the focal point for the international relations of the European Court with Constitutional and Supreme Courts outside Europe. Previously he had worked as an anti-corruption leading expert for the Council of Europe.

As Full Professor at the Faculty of Law of the Catholic University of Lisbon, he has published, inter alia, 23 books in English, French, Italian, Portuguese, Russian, Spanish, Turkish and Ukranian and 65 legal articles and book chapters in those languages as well as Chinese and German. Since his appointment as a Judge in Strasbourg, he has authored 157 opinions that have significantly contributed to the development of international human rights law. The Judge’s decisions are regularly cited by academic scholars and practitioners in human rights law, public international law, criminal law, migration and refugee law.'

Liber Amicorum Linos-Alexandre Sicilianos on Fair Trial: Regional and International Perspectives

Iulia Motoc, Lubarda Branko, Maria Tsirli, Paulo Pinto de Albuquerque, Robert Spano have co-edited a Liber Amicorum Linos-Alexandre Sicilianos Procès Équitable: Perspectives Régionales et Internationales/Fair Trial: Regional and International Perspectives, published with Anthemis. The book contains contributions in French and English. The abstract of the book is here (translated and summarised by editor):

Linos-Alexandre Sicilianos served as a judge at the European Court of Human Rights from 2011 to 2020. He served as Section President, Vice-President of the Court, then was elected President of the Court in May 2019, until May last year. On the occasion of the end of his term as President, his colleagues, friends and collaborators wish to pay tribute to him and express their gratitude to him for his remarkable achievements in and contribution to the field of human rights law.

The edited volume in honour of Linos-Alexandre Sicilianos examines the notion of fair trial from a regional and international perspectives. While being open to a range of backgrounds and subjects, the book deals with subjects directly related to principles which occupy a pre-eminent place in a democratic society, notably the rule of law, as reflected in the right to fair trial and the right of access to a court. The existence of independent and impartial courts has always been the central point of Linos-Alexandre Sicilianos' judicial philosophy, both as an academic of international law and as a judge of the Court.

The table of contents can be found here.

New Book on Migration and the ECHR

Başak Çalı (Hertie School), Ledi Bianku (University of Strasbourg) and Iulia Motoc (European Court of Human Rights) have co-edited the new book Migration and the European Convention on Human Rights, published with Oxford University Press. A video of the online launch of the book earlier this month is available here. This is the abstract:

'This edited collection investigates where the European Convention on Human Rights as a living instrument stands on migration and the rights of migrants.

This book offers a comprehensive analysis of cases brought by migrants in different stages of migration, covering the right to flee, who is entitled to enter and remain in Europe, and what treatment is owed to them when they come within the jurisdiction of a Council of Europe member state. As such, the book evaluates the case law of the European Convention on Human Rights concerning different categories of migrants including asylum seekers, irregular migrants, those who have migrated through domestic lawful routes, and those who are currently second or third generation migrants in Europe.

The broad perspective adopted by the book allows for a systematic analysis of how and to what extent the Convention protects non-refoulement, migrant children, family rights of migrants, status rights of migrants, economic and social rights of migrants, as well as cultural and religious rights of migrants.'

And this is the table of contents:

Part I. Migration and the European Convention on Human Rights

1: Migration and the European Convention on Human Rights, Başak Çalı, Ledi Bianku, and Iulia Motoc

2: The Migrant Case Law of the European Court of Human Rights: Critique and Way Forward, Marie-Bénédicte Dembour

Part II. Right to Flee, Right to Seek Asylum, and the Right to Humane and Dignified Treatment

3: Theorising the (Intersectional) Right to Flee in the ECHR: A Composite Entitlement to Leave to Escape Irreversible Harm, Violeta Moreno-Lax

4: The JK Decalogue: A Paradigm Shift In Dealing With Asylum Cases In Strasbourg?, Ledi Bianku

5: Challenges to the Application of the Concept of Vulnerability and the Principle of Best Interests of the Child in the Case-Law of the ECtHR Related to Detention of Migrant Children, Ksenija Turkovic

6: The Contribution of Strasbourg Case-Law to the Effective Access of Undocumented Migrants to Minimum Social-Economic Rights: Towards a More Dignified Position of Vulnerable Undocumented Migrants in the European Space, Francesca Ippolito and Carmen Pérez González

Part III. Rights of Long-Term Migrants

7: The European Court of Human Rights and Removal of Long-Term Migrants: Entrenched Statism with a Human Voice?, Başak Çalı and Stewart Cunnigham

8: Cultural Rights of Migrants: Living Together in Dignity?, Bianca Selejan-Gutan

9: Islamophobia and the ECtHR: A Test-Case for Positive Subsidiarity for the protection of Europe's long term migrants?, Eva Brems

Part IV. Stages of Migration and the European Court of Human Rights

10: Stages of Migration and the European Court of Human Rights: A Case List, Kristina Hatas