Research Report on Protocol 16 in Judicial Practice

How has Protocol 16 ECHR has been implemented and applied so far and could its use be improved? A research report commissioned by the Research and Documentation Centre of the Ministry of Justice of the Netherlands has just been published and presented to the Dutch Parliament this week. It was authored by a team of researchers here at Utrecht University, led Janneke Gerards and Claire Loven, with my collaboration (Antoine Buyse). The report, entitled 'Protocol 16: backgrounds, significance, effects and experiences' (my translation of the title; it is available only in Dutch for now) is based amongst others on a large number of interviews with national judges.

The report is in Dutch, but includes an English-language summary. In the near future an English-language article presenting the findings is envisaged. The Dutch press release can be found here. Below is the press release:

'Dutch highest courts have yet to see cases where European Court opinion could be useful
 
On 1 June 2019, Protocol 16 to the European Convention on Human Rights (ECHR) entered into force for the Netherlands. This allows the highest Dutch courts* to request an opinion from the European Court of Human Rights (ECtHR) on the interpretation or application of the ECHR. Four years after the Protocol entered into force, the Dutch highest courts have not yet made use of it. Foreign courts also prove  reluctant to submit requests for opinions to the ECtHR. Although they see the added value of the Protocol, most courts believe it is primarily up to them to interpret and apply national law. These are the main outcomes of a study conducted at Utrecht University, commissioned by the WODC and carried out by prof. dr. Janneke Gerards and dr. Claire Loven, with the assistance of prof. dr. Antoine Buyse.
 
The purpose of the Protocol is to promote the dialogue between the ECtHR and national courts. As a result, human rights can be better protected in national proceedings. In addition, the idea is that with a proper application of the ECHR in national court cases, complaints to the ECtHR can be avoided. 
When the bill was adopted in the Netherlands, there was much discussion about the added value of the Protocol, as well as about the need for such a procedure and its consequences in practice. At the request of the House of Representatives, it was therefore agreed to evaluate the functioning of the Protocol after four years. This study maps the first experiences with the Protocol on the basis of, among other things, literature research and interviews with Dutch and foreign judges, government representatives and experts.
 
Concerns over active ECHR interference in domestic issues
Protocol 16 has so far been ratified by 19 of the 46 member states of the Council of Europe and eight requests for opinions have been submitted on the basis of the Protocol, which have led to the Court issuing a total of six opinions. Several European countries are reluctant to sign or ratify the Protocol. The research shows that they fear the ECtHR will interfere too actively in national fundamental rights issues. On the other hand, both Dutch and foreign judges see added value when there are new legal questions on which the ECtHR has not yet given clear rulings. 
 
Implementation of the ECHR on the national level

Based on the limited number of opinions requested and issued so far, it is not possible to say whether the advisory procedure contributes positively to the implementation of the ECHR at the national level. Similarly, it is still uncertain if the Protocol will lead to fewer proceedings at the ECtHR. Such reduction was projected to be realised in matters involving a large number of similar legal cases. An opinion could provide clarity as regards the application of the ECHR in all such cases and thus help to solve them already at the national level. This was expected to lead to a lower number of applications to be lodged with the European Court. So far, however, requests have not dealt with such repetitive issues, but concerned unique cases or very specific ambiguities in existing ECtHR jurisprudence.
 
Considerations by Dutch courts for not submitting a request for an advisory opinion

Interviews with the Dutch courts show that there have not yet been any cases that they thought they could not resolve satisfactorily themselves, based on their own analysis of the ECHR and ECHR case law. Another factor is that many cases also have an EU law component. When there is ambiguity about the application of EU law, courts prefer to seek an interpretation from the Court of Justice of the EU (CJEU). In EU member states, this so-called preliminary ruling procedure – which courts are obliged to follow in some cases – thus may take precedence over the advisory opinions procedure. Thirdly, there is a perception that proceedings at the ECtHR can lead to delays in national proceedings. The courts find this particularly problematic in cases concerning, for example, detention or immigration, where a speedy decision is of particular importance. However, the study does show that at the moment, the duration of the advisory procedure is shorter than that of the proceedings at the CJEU.
 
Criteria for requesting advice

The researchers provide – partly based on the experiences of the Dutch and foreign courts interviewed – criteria for when submitting a request for an opinion is useful. So far, in the Netherlands, according to the highest courts, there have been no cases that met these criteria. It is thus impossible to say whether the Protocol is being used to its full potential and whether more use of it will be made in the future.'

New Book on Positive Obligations under the ECHR

Vladislava Stoyanova (Lund University) has published a new book entitled Positive Obligations under the European Convention on Human Rights. This is the abstract:

''It is beyond question that States have positive obligations under the European Convention on Human Rights (ECHR) to prevent and address harm and risks of harm. However, given the difficulties of determining and delimiting the role of the State, the conditions under which positive obligations may apply can be unclear. The search for balance between intrusion and restraint by the State—between protection and freedom from interference—further complicates the question of state responsibility for breach of positive obligations.

Vladislava Stoyanova directly addresses these challenges in Positive Obligations under the European Convention on Human Rights. By systematising the case law of the European Court of Human Rights, the book provides key insights into the elements crucial for ascertaining state responsibility for omissions - state knowledge, causation, and reasonableness. It outlines different kinds of positive human rights obligations and identifies the circumstances under which they can be breached.

Stoyanova reflects upon what is at stake for political communities when the triggering, content, and scope of positive obligations has been determined. She offers serious evaluation of the dangers of ECHR obligations whose scope might be too expansive or intrusive, as well as the conceptual hurdles of applying positive human rights obligations extraterritorially.

The definitive resource on ECHR positive obligations, this book is essential reading for academics, legal practitioners, and policymakers working across the diverse fields in which positive human rights obligations may apply.''

MOOC on ECHR Starts Again on 7 September

Utrecht University's free Massive Open Online Course (MOOC) on the ECHR is starting again today, on 7 September. 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 my Utrecht University colleagues professor Antoine Buyse and professor Janneke Gerards. This is the description 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:

BBC Podcast Episode on the UK and the ECHR

Last week BBC Radio 4's 'The Briefing Room' released a podcast episode on the United Kingdom and the European Convention on Human Rights. In the episode, Ed Bates (University of Leicester), former president of the ECtHR Robert Spano, Joelle Grogan (UK in a Changing Europe) and Tom Hickman (University College London) discuss, inter alia, the UK's involvement in the drafting of the Convention, the impact of the Convention on the UK, the relationship between the UK's Human Rights Act and the Convention, and the consequences if the UK would decide to leave the ECHR. 

New Book on the ECHR's Impact on National Private Law

Matteo Fornasier (Ruhr University Bochum)) and Maria Gabriella Stanzione (University of Salerno) have co-edited a book recently published by Intersentia, entitled The European Convention on Human Rights and its Impact on National Private Law: A Comparative Perspective. This is the abstract:

''Originally, the European Convention on Human Rights (ECHR) was meant to protect the rights and freedoms of individuals against interference from the state. However, following the landmark ruling of the European Court of Human Rights (ECtHR) in the case of Marckx v Belgium, it has become apparent that the ECHR matters also in the ‘horizontal’ relationships between private parties. Over the last two decades, the ECHR has come to play a major role in a large number of private law issues. As a result, the case-law of the ECtHR has triggered significant changes in Contracting States’ domestic private laws. The aim of this book is to provide a broader view of the impact of the ECHR on national private law. To that end, it begins with a comparative analysis of the interaction between the ECHR and the States Parties’ domestic laws, focusing on two jurisdictions: Germany and Italy. The chapters forming the main part of the book explore, also from a comparative perspective, the influence of the ECHR on a wide range of fields of private law, including family law, data protection law, media law, copyright law, labour law as well as private international law and procedural law. The analysis of cases reveals many common features, but likewise some inconsistencies, in the decisions of the ECtHR involving issues of private law. The final part of the book focuses on a number of overarching issues, in particular on the role of comparative law in the reasoning of the ECtHR and on the contribution of the ECHR to European harmonisation of private law. What becomes apparent from the various contributions is that the ECHR and the case-law of the ECtHR are becoming important elements of a common European private law.''

Webinar on the Implementation of ECtHR Judgments concerning Legal Gender Recognition

On 13 July from 10:00 to 11:30 CET, the European Implementation Network (EIN) and Transgender Europe (TGEU) are organizing a webinar entitled 'From Court to Practice: Implementing European Court of Human Rights Rulings'. The online webinar will discuss the implementation process of ECtHR judgments concerning legal gender recognition.

Here is a description of the event:

'Recently, trans people have won many cases on legal gender recognition. These cases found that their human rights were violated by the country they live in. This is particularly apparent at the European Court of Human Rights. However, few people know what comes next. How can you make this legal win also translate into real change for trans people? 

Implementation, and the promised increase of rights for trans people, is often not automatic or immediate. Civil Society involvement is important to ensure that governments implement Court decisions properly. This is particularly relevant where broader measures, beyond the individual applicant, are concerned. For instance, when a ruling requires legal gender recognition procedures to be established.

Join us 13 July from 10:00 to 11:30 CEST to learn how to: 

- navigate the implementation process

- hold your country accountable for human rights violations

- get the most out of European Court of Human Rights rulings.

This webinar explains the implementation process. It will walk you through how NGOs and lawyers can get involved in ECtHR implementation. 

We will discuss practical steps in how to make a formal submission (Rule 9.2 submission). As this webinar is specifically focussed on legal gender recognition, we will also provide information on pending legal gender recognition cases in the implementation process.

Lawyers and activists will share their experiences with using the procedure to advance trans rights. Finally, you will have the opportunity to ask questions.

This webinar is of particular interest for lawyers and activists from countries that currently have cases in the implementation process. This includes Bulgaria, Georgia, Hungary, Lithuania, North Macedonia, and Romania. It is also for lawyers and activists thinking about bringing cases to the European Court of Human Rights and, of course, those with pending cases. '

You can register here for the event. 

New EIN-DRI Rule of Law Report 2023

Yesterday, the European Implementation Network (EIN) and Democracy Reporting International (DRI) launched their new report entitled 'Justice Delayed and Justice Denied: Report on the Non-Implementation of European Judgments and the Rule of Law'. The report addresses the issue of non-implementation of judgments of the European Court of Human Rights and the Court of Justice of the European Union in EU Member States, and contains recommendations for actions by the EU. 

Here is the summary of the report:

'The attacks on fundamental European values in recent years have continued to raise concern for European stakeholders – governments, the media, and citizens alike. The EU has introduced a series of policy measures designed to halt and reverse this phenomenon, ranging from the new annual rule of law review cycle to targeted measures, such as withholding structural funds from countries with severe infringements of the rule of law. 

In 2022, following civil society calls for the EU’s rule of law reporting to take into account the non-implementation of judgments from the two key European courts – the ECtHR and the CJEU (hereafter, “the European Courts”) – the EU Commission has included this type of data in its annual Rule of Law Report. This development allowed the EU to identify longer-term problems with the rule of law across all Member States that had previously been overlooked. 

The EU Commission’s annual rule of law review cycle should continue to take into consideration the non-implementation of judgments of the two key European Courts in order to holistically assess the overall records of compliance with the rule of law in all EU states. 

The European Courts do not stop delivering new rulings; in 2022 alone, the ECtHR delivered 1,059 violation judgments. This report reflects the fact that the non-implementation of judgments of the European Courts continues to be a systemic problem. Some 40 per cent of the leading judgments of the ECtHR relating to EU states from the last ten years have not been implemented. Each of these judgments relates to a significant or structural problem in the laws or practices of states, often with direct consequences for many citizens. 

Non-implementation of judgments of the ECtHR is a problem across the continent. Bulgaria, Finland, Greece, Hungary, Italy, Malta, Poland, and Portugal all have leading judgments that have been pending implementation for over five years. In Bulgaria, Finland, Hungary, Italy, Poland, Romania, Slovakia, and Spain, over 50 per cent of leading judgments from the last ten years are yet to be implemented. Bulgaria and Romania have each failed to implement over 90 leading judgments.

Hungary has a particularly serious non-implementation problem, with 76 per cent of the leading ECtHR rulings from the last ten years awaiting implementation. Overall, it is notable that the majority of the highest non-implementing countries, namely Bulgaria, Hungary, Italy, Poland and Romania, are also the ones with much broader and systemic rule of law issues, including attacks on the independence of the judiciary and on other oversight institutions. 

There are 616 leading ECtHR judgments pending implementation concerning EU states. The European Commission’s Rule of Law Report should continue capturing the entirety of these cases and set out recommendations to those Member States with particularly poor levels of implementation. 

In the past few years, with the visible decline in the situation regarding the rule of law in several EU Member States, the CJEU has been increasingly focused on rule of law issues, and particularly on measures meant to weaken checks on the government. Hungary, Poland, and Romania have emerged as the countries with the largest number of unimplemented rulings of this kind. A few alarming tendencies have appeared: the refusal to comply with CJEU judgments, coupled with an open contestation of the CJEU’s authority; sham compliance, through façade changes that do not significantly change the status quo; partial compliance, through measures that address only fragments of broader systemic problems and do not address underlying issues; and, finally, protracted failure to make institutional arrangements EU law-compliant, despite general declarations of commitment and recognition of the CJEU’s authority. The European Commission’s alertness and clarity of assessments can be critical to avoiding illusory compliance or significant delays in the implementation of necessary measures. It is also critical that the Commission does not reach conclusions about the adequacy of reforms prematurely, thereby de-legitimising any further efforts of national actors to address shortcomings emerging in practice. 

The European Commission has addressed the non-implementation of the relevant judgments of the CJEU in its rule of law reports, albeit in a somewhat sporadic fashion. A more critical, systematic and holistic assessment of the levels of implementation is warranted, as is flagging significant delays in implementation. 

It needs to be kept in mind that, due to the differences in access provisions, the CJEU does not get to rule on as many situations signalling rule of law risks as the ECtHR. The claim is that this is partly because of the Commission’s reluctance to resort to the CJEU, and partly because of the formal and informal obstacles national judges face in submitting requests for preliminary rulings.'

Call for Interest - Protecting Free Speech through ECtHR Implementation

The European Implementation Network (EIN) is calling on NGOs to express their interest to participate in a new project entitled 'Protecting Freedom of Expression by Supporting the Implementation of ECtHR judgments'. The project is aimed at protecting the right to free speech in every country in Europe where there is a ECtHR judgment pending implementation. Civil society will be provided with training, resources and mentoring in order to enable them to engage with the implementation process of the ECtHR judgments. The project will run for two years (

June 2023-May 2025).

Here is a description of the call:

'On 1st June, EIN launched a new project aimed at protecting freedom of expression by supporting ECtHR implementation, which will last for two years. The project aims at mapping ECtHR judgments pending implementation and NGOs working on freedom of expression, and helping them to use the ECtHR judgments implementation avenue to push for freedom of speech in Europe. 

A two-day event will be organised in the second half of November (20-21 November, Mediencampus, Leipzig) for partners in the project. Activities will include assistance with drafting written submissions to the Council of Europe’s implementation monitoring process, and advice on advocacy best practices at national level to promote ECtHR implementation; briefings on cases concerning freedom of expression or media freedom to delegates of the Committee of Ministers of the Council of Europe; training and a conference to share lessons-learnt and best practices among stakeholders, and reporting on the overall state of implementation of ECtHR judgments concerning free speech. 

EIN has a limited number of grants to allocate to NGOs committed to take part in our project. 

Applications from NGOs which are specialized in the defense of freedom of expression but do not work yet on the implementation of ECtHR judgments are welcome. If your NGO already works on the implementation of FoE pending judgments, you might also benefit from our support.  At this stage, if your organisation is interested in applying for a grant, we kindly ask you to fill in this form by the end of July.

Partners who will receive a grant from EIN in the frame of the project “Promoting Free Speech with European Judgments” will be considered Beneficiaries and will sign a subgrant agreement with EIN. For more information about the eligible activities, please see the Guidelines for beneficiaries.

The expertise of your organizations would be a valuable contribution to advocacy efforts for the implementation of ECHR judgments on free speech and can help turn judgments from the ECHR into real changes.'

More information about the project can be found here.

New Edition of 'General Principles of the European Convention on Human Rights'

Our Utrecht University colleague professor Janneke Gerards has published the new second edition of her textbook entitled General Principles of the European Convention on Human Rights. This textbook offers an explanation of all relevant substantive concepts and principles of ECHR law. 

This is the abstract:

''The European Convention on Human Rights is one of the world's most important and influential human rights documents. It owes its value mainly to the European Court of Human Rights, which applies the Convention rights in individual cases. This book offers insight into the concepts and principles that are key to understanding the European Convention and the Court's case law. It explains how the Court approaches its cases and its decision-making process, illustrated by numerous examples taken from the Court's judgments. Core issues discussed include types of Convention rights (such as absolute rights); the structure of the Court's Convention rights review; principles and methods of interpretation (such as common-ground interpretation and the use of precedent); positive and negative obligations; vertical and horizontal effect; the margin of appreciation doctrine; and the requirements for the restriction of Convention rights.''

New ECHR Readings

Please find below our newest batch of selected academic publications on the European Convention of Human Rights and the Court European Court of Human Rights and its case-law:

* Lize R. Glas, 'The age of subsidiarity? The ECtHR’s approach to the admissibility requirement that applicants raise their Convention complaint before domestic courts', Netherlands Quarterly of Human Rights, Volume 41, Issue 2 (2023):

‘The Copenhagen Declaration (2018) welcomed European Court of Human Rights (Court) ‘continued strict and consistent’ application of the admissibility criteria, ‘including by requiring applicants to be more diligent in raising their Convention complaints domestically’ when exhausting domestic remedies. This article answers the question whether the Court has indeed required applicants to be more diligent in this respect. The answer contributes to a body of academic research studying to what extent and how the Court has developed the subsidiarity principle. Additionally, the answer is of great practical relevance to applicants and their representatives, because they may have to change how they plead their case before the domestic courts with a view to bringing a complaint in Strasbourg. The case-law analysis performed in this article shows that, in some recent rulings, which mainly hailed from the UK, the Court has indeed required applicants to be more diligent in raising their Convention complaints domestically. However, the Court does not maintain this stricter line consistently.’

* Remigijus Jokubauskas and Marek Świerczyński, 'Digitalisation of Enforcement Proceedings', Utrecht Law Review,  Volume 19, Issue 1 (2023):

‘This article focuses on the compatibility of electronic enforcement proceedings and the right to a fair trial. Since Article 6 of the European Convention on Human Rights is applicable to enforcement proceedings, enforcement proceedings must be effective and satisfy the requirement of fair trial. Electronic enforcement proceedings need to find a fair balance between accelerated enforcement and protection of human rights. Thus, the authors analyse what procedural guarantees of fair trial are applicable in electronic enforcement proceedings and how they are compatible with the protection of human rights. In order to answer these questions, the authors first analyse what procedural guarantees of fair trial are applicable in electronic enforcement proceedings and what is the application, ratione personae, of Article 6 of the ECHR in such proceedings. Second, the authors focus on some specific issues of electronic enforcement proceedings: electronic issuance and submission of enforceable documents and electronic auctions. The analysis encompasses the relevant case law of the European Court of Human Rights, and the regulation of enforcement proceedings and case law of various states. Third, the authors discuss the problems of liability for violations of the right to fair electronic enforcement proceedings.’

* Vladislava Stoyanova, 'Framing Positive Obligations under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete', Human Rights Law Review, Volume 23, Issue 3 (2023):

‘Positive obligations under the European Convention on Human Rights can be framed with different levels of concreteness. The level chosen is essential for understanding the analytical distinction between the existence of an obligation and its breach. The level of concreteness is an important conceptual framework because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and concrete terms, and how the reasoning mediates between the two. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to the concrete measures to fulfill their positive obligations.’

* Jeremy Letwin, ‘Proportionality, Stringency and Utility in the Jurisprudence of the European Court of Human Rights’, Human Rights Law Review , Volume 23, Issue 3 (2023):

‘I argue that a form of indirect utilitarianism can provide a sufficiently plausible justification for three crucial elements of the ECtHR’s doctrine of proportionality to be taken seriously as an account of this doctrine. I show how indirect utilitarianism can account for the relation between moral rights and Convention rights, the resistance to trade-offs that is a particular property of Convention rights and the nature of the public interest against which rights must be balanced. I argue that the indirect utilitarian account provides a coherent interpretation of the Court’s jurisprudence concerning: (i) aims that express moralistic external preferences and their legitimacy; (ii) balancing and the doctrine of the ‘essence of rights’; and (iii) the Court’s reasoning in Dickson v UK. I conclude by exploring the further work needed to establish more firmly this account’s plausibility as an interpretation of the Court’s doctrine of proportionality as a whole.’

* Marko Bošnjak and Kacper Zajac, ‘Judicial Activism and Judge-Made Law at the ECtHR’, Human Rights Law Review, Volume 23, Issue 3 (2023):

‘This paper contributes to an ongoing debate concerning the perceived judicial activism of the European Court of Human Rights (ECtHR). It argues that the output of the Court should be better viewed as the phenomenon of judicial law-making, not unlike in domestic jurisdictions. However, unlike many domestic legal systems, the European Convention on Human Rights framework promotes large quantities of judge-made law. This outcome results from a combination of objective factors that, taken together, enhance the process of judicial law-making by the ECtHR. Those factors include the applied mode of interpretation of the Convention, the approach to its construction, the weak textual basis, the existence of positive obligations, the lack of the doctrine of precedent, the extremely high case law and judicial turnovers, the concurrent legislative inactivity, the existence of the inter-state jurisdiction and the doctrine of autonomous meaning. At the same time, the judicial law-making is only hindered by the doctrine of subsidiarity, the principle of margin of appreciation and the Fourth Instance doctrine. As a consequence of this overwhelming dominance of the factors enhancing the process of judicial law-making over those that hinder it, the ECtHR produces large quantities of judge-made law.’