Friday 27 June 2008

New ECHR Articles EHRLR

The newest issue of the European Human Rights Law Review (2008-3) has just appeared, as fellow blog International Law Reporter reports. These are the featured articles:

- Basak Çali, The Purposes of the European Human Rights System: One or Many?
- Keir Starmer, Responsibility for Troops Abroad: UN Mandated Forces and Issues of Human Rights Accountability
- Jill Marshall, A Right to Personal Autonomy at the European Court of Human Rights
- Ivana Radacic, Rape Cases in the Jurisprudence of the European Court of Human Rights: Defining Rape and Determining the Scope of the State's Obligations
- Catherine J. Van de Heyning, "Is it Still a Sin to Kill a Mockingbird?" Remedying Factual Inequalities through Positive Action: What can be Learned from the US Supreme Court and European Court of Human Rights Case Law?

Although the articles in this review are usually of high quality, it is relatively difficult to access. It was pointed out to me, however, that the articles appear quite quickly in Westlaw!

Thursday 26 June 2008

Official Case Law Overviews

With the huge amount of judgments and decisions flowing from Strasbourg, it becomes increasingly difficult to keep a good overview of the Court's case law. Strasbourg itself offers several possibilities to alleviate any Court watcher's burden. One important way are the Court's case law information notes which categorise cases (judgments, decisions and communicated cases) by Article and theme. They are searchable here. A new and exciting service provided by the court are the key case law issues. This comprehensive overview in the making compiles the leading cases per Convention article - useful and extremely handy for both academics and practioners (and an authoritative addition to existing books which provide similar overviews). Thusfar Articles 6(1), 8, 34, 35 en Article 1 of the first Protocol have been made available online. Meanwhile, a remake of the HUDOC search engine is being considered, with possibly even the option to search for existing translations in other languages than French or English. For the new plans, see this speech by Roddick Liddell from the Court's registry, delivered at a colloquy in Stockholm earlier this month. To be continued!

Wednesday 25 June 2008

Crossing the Line

This picture shows the Greek-Cypriot Solomon Solomou who tried, in the summer of 1996, to climb a flagpole (with a Turkish flag on it) just across the ceasefire line in Turkish-occupied Northern Cyprus. He was killed by five bullets as he climbed up. This was the second episode in a series of events which left two people dead. A few days earlier, Anastasios Isaak, also Greek-Cypriot, was kicked and beaten to death during a demonstration against the occupation, at the ceasefire line. Solomou's action was apparently triggered by Isaak's death. Yesterday, the European Court of Human Rights issued judgments in both cases and in each found violations of Article 2 ECHR.

The applicants in the two cases were the families of the deceased. Although Turkey disputed the facts and even the implication of Turkish military personnel in the killings, testimony of UN Peacekeepers and video and photo materials convinced the Court that Turkish soldiers participated in the mob that killed Isaak and that Solomou had been killed by bullets coming the guns of Turkish soldiers. The Court considered that in none of the two cases the violence had been absolutely necessary and thus found a substantive violation of Article 2. In addition, for lack of any investigation into the circumstances of their deaths, a procedural violation of the same article was found as well. High amounts of money were awarded for non-pecuniary damage.

Legally, the case is mainly notable because of the Court's detailed analysis of whether the killings could have been justified by the exceptions allowed under Article 2. The test is very strict, as should be expected for one of the most important rights in the Convention. The killings caused a lot of uproar and media attention at the time and even led to a condemnation by the European Parliament. Yesterday's Strasbourg judgments, almost 12 years after the facts, finally bring these cases to a close.

Ever since the start of the Turkish occupation of the Mediterranean island, the Strasbourg institutions have been used as fora of discussion and adjudication on some of the most difficult legal questions arising from that situation. Most famous perhaps is the Court's judgment in the (rare) inter-state complaint of Cyprus v. Turkey. Many other judgments have focussed on property issues. And a very recent case, also decided yesterday, focused on the freedom of expression (Foka v. Turkey). Foka, Isaak, and Solomou will certainly not be last judgments of the Court on the situation. As long as a political situation is not found, individual applicants will keep coming Strasbourg's way.

Click here for the judgment in the case of Isaak v. Turkey and here for the judgment in Solomou v. Turkey. The press release can be found here.

As an afterthought: with the upcoming ban on smoking in restaurants and bars in the Netherlands and some other parts of Europe as of 1 July, part of the Court's judgment in the Solomou case may serve as a consolation to some (para. 37): "The deceased was unarmed and had not attacked anyone; he was climbing a pole and smoking a cigarette, two actions which were not compatible with violent action against other individuals." John Lennon was not the last to connect smoking and non-violence in one person!

Tuesday 24 June 2008

Grand Chamber Judgment Maslov v. Austria

Yesterday, the Grand Chamber issued its judgment in the Maslov case on exclusion orders. I am very grateful that Maarten den Heijer, my former colleague from Leiden and an expert on migration law and human rights, was so kind to write a guest blog message on the case:

Juvenile offender must be reintegrated, not expelled

With Euro 2008 approaching the stage of the semi-finals, the European Court has settled the score between Maslov and Austria in favor of Maslov – with a 16 to 1 vote. The judgment of the Grand Chamber outlines the increasing importance the Court attaches to children’s rights, and is especially important for immigrant children.

The case concerned a ten-year exclusion order imposed by Austria on the 16 year-old Juri Maslov, of Bulgarian origin, who had been living legally in Austria with his family since the age of six. Between the age of 14 and 16 Maslov committed a range of offences – from burglary to assault – and was twice convicted on no less than 40 counts in total. After having served his prison term, the Austrian authorities decided Maslov’s presence in Austria to be undesirable and ordered him to leave the country.

According to settled case law, Article 8 ECHR imposes on States the obligation to weigh the interests of public order against the interests of the individual when expelling a person, which includes paying account to the social, cultural and family ties of the individual. It was with a meager 4 to 3 majority that the Chamber of the Court in March 2007 (see judgment here) found the scales to tilt in favor of Maslov, with the dissenters insisting that ‘the rights of non-nationals under Article 8 should not be overprotected’.

The balance of powers in the Grand Chamber was clearly different – with judge Steiner being the only Chamber dissenter who was also part of the Grand Chamber. The Grand Chamber makes clear that the margin of appreciation which is normally accorded to States in balancing the interests of public order with those of the expellee, is considerably narrower when dealing with children. The Court refers to Article 3 and 40 of the Convention on the Rights of the Child and interprets the best interests of the child to encompass an obligation to facilitate the child’s reintegration after having committed an offense. Reintegration, in the Court’s logic, will normally not be served by ordering expulsion, since expulsion will severe the social and family ties of the child. This reasoning goes some way in enhancing the residence status of immigrant children and makes clear that when dealing with juvenile offenders who are aliens, States must not simply take the easy option by expelling the juvenile.

It must be noted that the judgment falls short from an absolute prohibition on the expulsion of alien juvenile delinquents. Considerable weight is attached to the finding that Maslov had committed relatively minor, non-violent offences. In earlier judgments, the Court considered the expulsion of juveniles who had been convicted for aggravated rape (Bouchelkia v France) and manslaughter (Kilic v Denmark) not to raise an issue under Article 8.

The legal relationship between expulsion of aliens and their right to private and family life under Article 8 is very much judges-made law. For an insightful analysis of the Court’s approach, read Daniel Thym, ‘Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?’, published in the International & Comparative Law Quarterly, volume 57, January 2008.

It is also noteworthy that the current president of the Court, Jean-Paul Costa, has in the past expressed his regret that exclusion orders exist, for they constitute double punishment in the humane sense of the term. See his concurring opinion in Maaouia v France.

Thank you, Maarten!

Monday 23 June 2008

New Article on Interim Measures

The newest issue of the European Constitutional Law Review (vol. 4, issue 1, 2008, pp. 41-63) contains an article by colleagues from Utrecht and Ghent universities on interim measures:
Apart from being a case note on the judgment in Olaechea Cahuas v. Spain, it contains a much broader analysis on the nature and legal effect of interim measures: Yves Haeck, Clara Burbano Herrera & Leo Zwaak, 'Non-Compliance with a Provisional Measure Automatically Leads to a Violation of the Right of Individual Application ... Or Doesn't It?' This is the abstract:

Provisional or interim measures before the European Court of Human Rights – Historic judgment in the case of Olaechea Cahuas v. Spain – The non-compliance by a State with an interim measure leads to a violation of Article 34 ECHR, irrespective of the subsequent finding of a violation of other material provisions of the ECHR by the Court – Remaining (loopholes for) recalcitrant states – Lack of reasoning of interim measures – Lack of clarity as to applicants' unwillingness to abide by an interim measure and currently untenable, extremely narrow scope ratione materiae of situations in which interim measures are indicated by the Court – Codification of the institute of provisional measures by including it as a separate provision into the European Convention through an additional protocol.
For subscribers, the article is accessible electronically here.

Friday 20 June 2008

On the Record

Since George Orwell wrote his famous novel on the dangers of an all-controlling Big Brother in the 1940s the possibilities to record human behavior have greatly increased. The challenges to the right to privacy are obvious, but audio or videotaping behavior can also form important proof in criminal and other proceedings. Such tapes can be used by or against the state. Two recent cases at the European Court illustrate this.

The first is the case of Victor Saviţchi v. Moldova. On 17 June the Court delivered its judgment in the case, finding a violation of Article 3 ECHR (prohibition of torture and inhuman or degrading treatment and punishment), concerning both its substantive and its procedural aspects. In many ways the case is one of the hundreds of instances of police violence which Strasbourg has to assess yearly: the applicant was beaten during his arrest by the police. But one element clearly sets the case apart: the whole incident was filmed, by the police for that matter! However, the national authorities and courts mainly used police testimony in deciding the case, mostly ignoring the taped evidence. All the more flagrant since the videotaped evidence showed that the applicant did not fight the arrest but tried to avoid the blows and kicks of the police officers. In that sense, in the Court's view, the authorities did not reasonably use all the available evidence. A clear Strasbourg pointer on how to conduct an effective investigation into allegations of ill-treatment.

A contrasting situation, where taped materials were used against an individual is the case of Bykov v. Russia, currently pending in Strasbourg. The facts are reminiscent of a James Bond movie. Bykov was suspected by the authorities of planning the murder of a former business associate of his. The police staged the discovery of the murdered body of the associate, with the help of the man ('V.') who had allegedly been hired by Bykov to commit the murder. The fake murder was widely publicised in the media and a few days after the 'discovery', V. went to Bykov to report that he had accomplished his mission, carrying on him a hidden radio-transmitting device, which allowed the police to record the whole conversation. On the basis of those tapes, Bykov was arrested and eventually sentenced to several years in prison for 'incitement to commit a crime involving a murder'. In Strasbourg, Bykov complained of un unfair trial (evidence obtained by entrapment being decisive) and about violations of the right to respect for his home, private life and correspondence.

The Grand Chamber hearing in this case was held on Wednesday 18 June and can be found here and the admissibility decision here. For an earlier Strasbourg judgment on entrapment, see Teixeira de Castro v. Portugal. To be continued!

Thursday 19 June 2008

Judgment on Suicide in the Army

On Tuesday 17 June the Court found a violation of the right to life in a case involving suicide: Abdullah Yilmaz v. Turkey. The case concerned a 20-year-old who committed suicide during the performance of his compulsory military service. The immediate trigger for the sad event were several rows over tea(!) between Yilmaz and his superior. His commanding officer scolded and kicked him and humiliated him in front of others on the very day that Yilmaz had told him that he had personal difficulties. When in the afternoon Yilmaz threatened to kill himself, his officer pointed a gun at him out of fear of being attacked. Immediately, Yilmaz did indeed kill himself with his gun.

The Court's judgment focussed on the question whether the authorities were or should have been aware of a real risk that Yilmaz would kill himself - and if so, whether they did everything to prevent it. The state responsiblity is much more directly involved here because he was performing his military service. In that sense, he was under the state's control (comparable to dentention situations in which a heightened state responsiblity also exists). Although no such an indication had existed before the crucial day, his fragile state had become apparent on that day and his commanding officer had exacerbated the situation instead of appeasing it. Even if the extent of the effects of the superior's behavior on Yilmaz could not be established, the fact that he pointed a gun at him made the effects irreversible. Thus the Court concluded that the commanding officer did not assume the responsiblities required of a professional to protect the mental and physical integrity of those placed under his command.

The judgment further clarifies the systemic safeguards a state needs to incorporate into its regulatory framework concerning army personnel. It is indeed the very fact that such a superior was allowed to function in this way which proved the deficiencies of the system.

The judgment is available only in French, but a press release in English can be found here.

Wednesday 18 June 2008

Television judgment

Yesterday, the Court unanimously found a violation of Article 10 ECHR (freedom of expression) in an Armenian media case: Meltex Ltd & Mesrop Movsesyan v. Armenia. The case concerned the sevenfold refusal of the Armenian authorities to grant a broadcasting license to the Meltex broadcasting company. No reasons were given for the refusals, apart from the general statement that the National Radio and Television Committee only made decisions as to which was the best company. The owner of the company had earlier run into difficulties with the state when he refused, with his previous television company, to broadcast only Government propaganda during the 1995 presidential campaign.

The case focuses on a relatively unknown part of Article 10: "This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises." For references to earlier case law, see para. 74 of the judgment. Whereas most freedom of expression cases would focus on the issue whether the interference by the state was "necessary in a democratic society", the Court did not even get to assess that point. It held that the interference had not been prescribed by law. It is remarkable that the authorities did follow the applicable Armenian law, but that that law was not of sufficient quality in the Court's view. Referring to its own earlier case law, and documents of other Coucil of Europe bodies, the Court held that (para. 83) "a licensing procedure whereby the licensing authority gives no reasons for its decisions does not provide adequate protection against arbitrary interferences by a public authority with the fundamental right to freedom of expression." Although the European Court cannot strike down laws directly, this is a clear example where the state concerned will have to amend the law in order to prevent further violations of the ECHR. Not the television station, but the law should therefore be taken 'off the air' in a way.

It is also to be noted that the complaints of the second applicant, the chairman of Meltex, were not deemed admissible, since the Court held that the only company and not its chairman was a victim. As to the damages, Meltex was awarded 20,000 euros for non-pecuniary damages. To award non-pecuniary damages to a legal entitry might seem somewhat awkward to outsiders, but it is fully in line with the Court's case law (see especially Comingersoll SA v. Portugal). In this particular case, no causal link between pecuniary damage and the violation could be established and the Court considered that merely finding a violation was not sufficient.

The press release of the case can be found here.

Tuesday 17 June 2008

Dealing with Conflicts of Rights

Dealing with conflicting fundamental rights is one of the great challenges of any constitutional court and the European Court is no exception. A recent paper offers an intriguing combination of the academic and the insider's perspective. In 'Rights in Conflict: the European Court of Human Rights as a Pragmatic Institution'* law professor Olivier de Schutter (Catholic University of Louvain, Belgium) and Belgian ECHR judge Françoise Tulkens explain and compare the different approaches to the issue. This is (part of) the abstract:

Fundamental rights are usually thought of as rules, which prescribe certain arrangements and exclude others; and it is the role of courts, in the traditional view, to expound their significance by applying predefined rules to the facts submitted to them. This view, characteristic of the formalistic conception of law, breaks down most clearly in contexts where one set of facts calls for the application of different rules which are not hierarchically ordered. Such situations oblige us to examine the virtues of a pragmatic conception of legal adjudication, and to explore the procedural implications of such a conception, in which the principles guiding the judicial reasoning are permanently reinvented in the course of their implementation. This paper offers such an examination, by studying the different approaches which have been adopted towards situations where fundamental rights conflict with one another.

* Follow the link look under the heading 'fundamental rights' to download the paper. Many thanks to my friend Jacco Bomhoff (of Comparativelawblog) for pointing out this paper to me.

Monday 16 June 2008

A People's History of the ECHR

For many Strasbourg watchers a certain curiosity remains after reading new judgments: what happens subsequently? Of course, the formal answer can be found in the work of the Committee of Ministers which monitors state compliance with the Court's case law. But beyond that, it is only by chance sometimes that newspapers report on how the applicants themselves continue with their lives. Also, one often wonders why a certain case was brought to Strasbourg. These are questions on the often partly hidden human dimension of jurisprudence. I was therefore particularly delighted when I recently was made aware of an intriguing book*: Michael Goldhaber, A People's History of the European Court of Human Rights (Rutgers University Press 2007). The book traces the backgrounds of the protagonists in a number of leading ECHR cases. Through meticulous research, dozens of interviews, and even photographs we finally discover what Jeff Dudgeon looks like or why Paula Marckx was so keen to press her case in Strasbourg (and why Anthony Tyrer was not). Paula Marckx fought for equal rights for her daughter Alexandra, who was born out of wedlock. And thus, the book recounts that Paula was smart enough to write a letter to Strasbourg in the name of her daughter:

"Messieurs, I am a ten-month-old baby (...) I hope with all my heart that a baby of my age can count on an institution like yours to protect her rights."

Mother and daughter won their case and now run a website that offers advice for travelling with pets... But the book also traces the perseverance of small groups of British (and American!) lawyers whose legal creativity was instrumental in lodging several of the first complaints which resulted in 'leading cases'. Finally, it is a written monument to the courage of people like Serif Aksoy, who pressed the case of his son - who was killed and tortured - before the European Court and paid a very heavy price for that; he was tortured 24 times. But the Strasbourg judgment in Aksoy was a landmark case, for the first time finding a violation of the prohibition of torture in an individual case. As the famous anthropologist Margareth Mead has said: "Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has." The stories in Goldhaber's book certainly illustrate that dictum well!

Although sometimes using sweeping statements, which to European readers sound almost too stereotypically American, the book does an excellent job in pointing out the unique success of Strasbourg in securing human rights - in a very accessible style for that matter. This is a book that doesn't only satisfy one's curiosity, it also whets one's appetite for more. Recommended reading!

And, as an afterthought in the wake of the Irish 'No!', it might be a consolation that Goldhaber asserts that the European Convention on Human Rights is, by far, the "most satisfying basis for a [European] communal identity."

* The Dutch judge at the European Court, Egbert Myjer, wrote about Goldhaber's book in a recent issue of the Dutch human rights review NJCM-Bulletin, vol. 33-2, pp. 305-307.

Thursday 12 June 2008

More Judgments on Detention Conditions

Yesterday, the Court found a violation of Article 3 in the case of Kotsaftis v. Greece. Kotsaftis suffered of hepatitis B and complained that he had incurred the disease during detention. His medical condition was so bad that he needed to be treated in hospital several times. During a leave from prison, he absconded and was only arrested two years later again. Although the Court found no proof that the applicant had been infected by hepatitis during his stays in prison, it did conclude that the authorities had not done what could reasonably be expected of them in view of the severity of Kotsaftis' illness. No sufficient or appropriate care had been offered to safeguard his physical integrity. In a remarkable obiter, the Court also lamented the fact that he had been detained in a cell with ten others, although his disease was highly infectious. This served as an additional argument to conclude that Kotsaftis had been submitted to inhuman treatment. But going beyond that, one can read into this a confirmation that there is duty of care to protect prisoners against infectious diseases of their fellow prisoners.

In a relatively rare use of interim measures (Rule 39 of the Rules of Court), which are mostly used to stay extraditions or expulsions, the Court had ordered Greece in March 2007 to transfer the applicant to a medical centre to be tested and treated until doctors would find that he could return to prison without his life being endangered. It did so within a week and Mr Kotsaftis' health improved as a result. The whole saga indicates the seriousness of his condition, but also a novel way to use Strasbourg as a life-saving mechanism.

The press release of the judgment can be found here. The judgment itself is only available in French. Une semaine francophone!

On the same day, the Court found another violation of Article 3 in a detention case. In Shchebet v. Russia, a Belorussian applicant was held for 34 days in a very small cell at Domodedovo airport in Moscow, which was normally used for short-term detention of only a few hours. For food she was fully dependent on her family and the goodwill of the attending police officers. Interestingly, the Court held that the detention was not only contrary to Russian law, but in addition was based on a misreading of the Russian-Belarussian extradition treaty! This is an ironic judgment in the sense that the applicant would not be able to complain about violations by her own country, since Belarus is the only European country which is not a party to the European Convention. Involuntary cross-border human rights tourism with a sad twist...

Human Rights During Armed Conflict

The manner of applying human rights to situations of armed conflict has been a topic of heated debate in academia and in courts in the last decade. A recent article in Global Jurist addresses the issue. Federico Sperotto's Law in Times of War: The Case of Chechnya looks into the ways in which the European Court of Human Rights has applied the Convention to the war in Chechnya and places it in a broader international law context. Good background reading for last week's judgments on the region. This is the abstract:

In October 1999 "the second Chechen war" broke out. In December the Russian federal army started an operation to take control of Grozny. During the confrontation between the Federal forces and the Chechen separatists, serious human rights violations occurred. Several cases concerning violations of fundamental rights, in and around the city, have been brought before the European Court of Human Rights against Russia. The lawsuits concerned physical integrity issues in particular. This study provides some insights on the jurisprudence of the European Court on Human Rights in order to ascertain the adequacy of the mechanism of protection provided by the European Convention of 1950 in situations of armed conflict.

Incidentally, today the Court found violations of Articles 2, 3, 5, and 13 ECHR in two new Chechen cases: Elmurzayev and others v. Russia and Atabayeva and others v. Russia. An almost endless series of disappearance cases seems to be yielding Strasbourg judgments in the years to come.

Wednesday 11 June 2008


Today this blog reached 1000 page views! I am very happy that news on the Court's judgments, on recent academic articles and other ECHR-related topics have found such a large audience (from 44 different countries so far) in less than three weeks. All the more reason to try and keep up with this good start. I very much welcome any comments, additions or news you may have. A big thank you to all visitors! Antoine

On Wheels Behind Bars

Yesterday, the Court held, in the case of Scoppola v. Italy, that Italy had violated Article 3 ECHR. The applicant, a man in a wheelchair who had no physical personal autonomy, was sentenced to life imprisonment after killing his wife and wounding one of his children. He complained about the detention circumstances in the Regina Coeli prison in Rome. Although a national court had already held in June 2006 that continued detention in that prison would amount to inhuman treatment, the applicant was only tranferred to a better-equipped detention facility in September 2007. The European Court held that the national authorities should either have transferred the applicant without delay in June 2006 to exclude any risk of future inhuman treatment or to suspend the execution of the prison sentence which had been found by a national court to be in violation of Article 3 ECHR.

This is a clear case in which Strasbourg points state authorities to the importance of avoiding inhuman or degrading treatment within their jurisdiction. In that sense, the case mirrors extradition and expulsion cases (most famously Soering v. the United Kingdom, 1989) in which the Court first found that it is a state's duty to avoid any future real risk of treatment contrary to Article 3. In Scoppola, the Court speaks of "tout risque" (any/all risk, para. 50), but that may be explained by the fact that a national court had already found that prolonged detention in the Regina Coeli prison amounted to inhuman treatment. Interestingly, the Court held that it could not assess whether the new prison, although undoubtedly better than the old one, was of sufficient quality, since the Court lacked sufficient information on that point. Thus, maybe to be continued...

Scoppola is the latest case in a very long line of Strasbourg case law on detention conditions of detainees, one of the major fields of application of Article 3. Maybe surprisingly, even the issue of wheelchairs in prisons has already been addressed several times. In Price v. the United Kingdom (2001), the applicant was de facto forced to sleep in her wheelchair, because she was physically unable to use the bed in her cell. The case of Vincent v. France (2006) concerned, among others, the lack of availability of an adequate wheelchair for the applicant. And, in a strange twist, in Mathew v. the Netherlands (2005), the authorities refused to provide the applicant with further use of a wheelchair after he had broken off a metal part of his previous one and had attacked the prison wardens with it!

The judgment itself is only available in French, but an English-language press release can be found here.

Tuesday 10 June 2008

Hearings to be Watched

This month the Court will hold a number of notable hearings. Among them is the case of the Polish Autocephalous Orthodox Church v. Poland, concerning uncertainty of ownership of a number of church buildings and the implications for the freedom of religion (hearing 17 June). There will also be a hearing in an interesting Macedonian case, Association of Citizens “Radko” and Paunkovski v. the former Yugoslav Republic of Macedonia. It concerns the dissolution of an NGO for inciting national or religious hatred and intolerance. The NGO was named after a person seen by many as a WW II collaborator of Hitler (hearing 19 June). Finally, the case of TV Vest AS & Rogaland Pensjonistparti v. Norway, focuses on political advertising (by a pensioners party!) on television - a hot topic in many countries (hearing 26 June).

For the full list of hearings, see here. All hearings of this month will take place at 9h00. The webcasts will be available here after 14h30 on the day of each hearing. Enjoy them, almost live...

Monday 9 June 2008

Two ECHR Articles on SSRN

I would like to highlight two recent articles on the European Convention of Human Rights, both by professor Laurence Helfer of Vanderbilt University, who kindly drew my attention to them. The first, from the European Journal of International Law, focuses on the notion of 'embeddedness' as a guiding principle of the European human rights system. The second, recently appeared in the Harvard International Law Journal, thoroughly surveys and analyses the Court's case law on intellectual property rights. Helfer argues for a limited role of the Court on such issues. Both recommended! Abstracts below, with the full text to be found on the Social Science Research Network:

Helfer, Laurence R., "Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime", European Journal of International Law, Vol. 19, p. 125, 2008.
The European Court of Human Rights (ECtHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECtHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECtHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of ‘embeddedness‘ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECtHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECtHR's deference to national decision-makers is appropriate.

Helfer, Laurence R., "The New Innovation Frontier? Intellectual Property and the European Court of Human Rights", Harvard International Law Journal, Vol. 49, p.1, 2008.
This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region‘s innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article analyzes this trend and uses it to develop three distinct paradigms to identify the proper place of intellectual property issues in the European human rights system. It concludes that the ECHR should find a violation of the right of property in intellectual property disputes only in cases of arbitrary government conduct.

Friday 6 June 2008

Bumpy Road to Strasbourg

The road to the Court in Strasbourg can be long and bumpy. And some applications are doomed to fail from the start. One needs only to think of the application filed by a computer animation company a few years ago, one of whose complaints was that the very need to file an application amounted to forced labour contrary to Article 4 of the Convention! Unsurprisingly, that part of the application was dismissed by the Court as it did not seem to disclose any appearance of a violation. For those wishing to come to Strasbourg better prepared - or with less humour - a good starting point is the Court's own webpage on the do's and don'ts of applying. Handy notes in all the main languages of the state parties are also available here. For those wishing to come even better prepared there is a number of very useful books. Karen Reed has written a clear volume on the in's and outs of Court proceedings: A Practitioner's Guide to the European Convention on Human Rights (Sweet and Maxwell, 3rd ed.,2008), but its price is rather high (368 USD). Very practical, but a bit older is: Philip Leach, Taking a Case to the European Court of Human Rights (OUP, 2nd ed., 2005). And a very recent one (2008), but in Dutch, written by my former colleagues from Leiden University: T. Barkhuysen, M.L. van Emmerik and E.R. Rieter, Procederen over mensenrechten onder EVRM, IVBPR e.a. VN-verdragen (Ars Aequi, 2nd rev. ed.).

Thursday 5 June 2008

Violation of Roma Right to Education

Today the Court held, unanimously, in the case of Sampanis and others v. Greece, that the treatment of a group of Roma school children by the Greek authorities violated Article 14 ECHR (prohibition of discrimination) taken together with Article 2 of Protocol No. 1. The children had, due to enrollment difficulties, missed a full year of primary school education and, subsequently, were placed in preparatory classes in a separate building in the Greek town of Aspropyrgos. On the first point, the Court considered that the school should have paid particular attention to the vulnerable position of the Roma and should have facilitated the Roma's enrollment. The Court held that under Article 14 authorities should sometimes give different treatment to certain groups to correct inequalities. On the second point, the Court found that there were no clear criteria nor assessments on the basis of which children were placed in separate classes. Although the Court accepted that preparatory classes to help children adjust to the ordinary school system could be justified, the selection of children should be based on non-discriminatory criteria. The Greek argument that the parents had consented to such placement, was countered by the Court in holding that the possiblity to waive one's right not to be discriminated on the basis of race was not acceptable. In addition, the Court found that no effective remedy existed on the national level (violation of Article 13 ECHR). Each applicant was awarded 6000 euros for non-pecuniary damage.

This is the second time that the Court found discriminatory treatment of Roma children in relation to education. The first was the Grand Chamber judgment in D.H. and others v. the Czech Republic of last year. In that, by now already leading case, the Grand Chamber reversed an earlier Chamber judgment (2006) and found a violation of the same ECHR provisions as in the Sampanis case. The D.H judgment is the seminal case on indirect discrimination. It concerned the fact that an inordinately high percentage of Roma children were placed in schools for children with learning disabilities. For a large amount of background materials on that case, see this very useful site of the European Roma Rights Centre.

The Court's press release on the Sampanis case can be found here. The judgment itself is only available in French.

Wednesday 4 June 2008

Implementing the Court's Judgments

The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has just declassified a report entitled Implementation of Judgments of the European Court of Human Rights. The report, which is part of the Parliamentary Assembly's ongoing monitoring of implementation of the Court's judgments, was prepared by rapporteur Christos Pourgourides from Cyprus. Formal oversight of implementation is conducted by the Committee of Ministers (Article 46(2) ECHR), but Assembly reports such as these give very handy overviews of progress made, including the outcomes in specific cases. By coincidence, the Committee of Ministers is meeting this week to supervise the execution of the Court's judgments and is planning to discuss 377 judgments. A full-fledged website on the execution of judgments can be found here. Recommended for Court watchers!

(Thanks to the weblog of professor William Schabas, which provided the link to the Assembly's report.)

Jurisdiction Revisited Once More

The issue of jurisdiction in the context of human rights has been a focal point of much academic research in the past decade. Marko Milanovic of the Belgrade Centre for Human Rights has just posted a pre-print of an upcoming article in the Human Rights Law Review on SSRN, entitled 'From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties'. The article explores the differences between jurisdiction under general international law and under human rights law. The emphasis is on the case law of the European Court of Human Rights. This is the abstract:

The extraterritorial application of human rights treaties is surely one of the most interesting issues that international law is facing today. Questions as to when a state owes obligations under a human rights treaty towards an individual located outside its territory are being brought more and more frequently, before courts both international and domestic. Victims of aerial bombardment, inhabitants of territories under military occupation - including deposed dictators, suspected terrorists detained in Guantanamo by the United States, and the family of a former KGB spy who was assassinated in London through the use of a radioactive toxin, allegedly at the orders or with the collusion of the Russian government - all of these people have claimed protection from human rights law against a state affecting their lives while acting outside its territory. Obviously, all of these matters are extremely politically and legally sensitive, leading to much confusion, ambiguity and compromise in the existing case law. Further complexity is added by the often concurrent questions such as state responsibility for acts of international organizations or the relationship between human rights law and humanitarian law.

This article will not be attempting to establish whether a particular human rights treaty should apply in a specific factual situation or not, or whether this case or that was wrongly decided. Though the latter kind of analysis in particular cannot be avoided - or, indeed, is to be relished - the purpose of this article is more systemic - to unravel the notion of 'jurisdiction' found in the clauses of various human rights treaties, particularly those protecting civil and political rights, which define their scope of applicability, and on the interpretation of which the extraterritorial application of these treaties ultimately hinges. As will be seen, a number of concepts hide themselves behind this single word, 'jurisdiction', and its different meanings contribute to the confusion found both in the jurisprudence and in academic commentary. The article will first provide a brief overview of jurisdiction clauses in the various treaties, and will then proceed to distinguish this notion of 'jurisdiction' from that eponymous notion in general international law, and from the concept of state responsibility.

Tuesday 3 June 2008

Echoes from Chechnya

Last week the Court ruled in five cases against Russia concerning disappearances: Ibragimov and others, Betayev and Betayeva, Utsayeva and others, Sangariyeva and others, and Gekhayeva and others. Violations were found on many counts, including the right to life (Article 2 ECHR), the prohibition of inhuman treatment (Article 3), the right to liberty and security (Article 5) and the right to an effective remedy (Article 13). In all judgments, the Court was unanimous.

These judgments can be added to a growing number of disappearances cases - a sad reminder of the pervasiveness of the problem. There are many aspects of note in the most recent ones, but I would like to single out four:

- First, the establishment of the facts. Since Russia appearantly failed to offer plausible explanations for the disappearances or furnish the Court with full documentation, the Court accepted the applicants version of the facts. These cases are, from that perspective, clear examples of states burning their own fingers by not cooperating with the Court during the proceedings.

- Secondly, four of these cases present a novelty in Strasbourg's dealing with the Chechnyan context. They are the first ones to be dealt with under expedited review. Under rule 41 of the Rules of Court, the Court can make exceptions to the ordinary, chronological order of dealing with cases. If anything, this is a sign of the growing awareness of the urgency of disappearance cases.

- Thirdly, as was kindly pointed out to me by my Utrecht University colleague Marthe Lot Vermeulen - an expert on enforced disappearances - some of these cases, e.g. Imbragimov and others, are an important confirmation of the Court's evolving case law on the victim status of family of the disappeared. In the seminal case of Kurt v. Turkey (1998), the mother of a disappeared person was recognised as a victim. In the later case of Orhan v. Turkey (2002), the Court held that this finding did not imply that any family member automatically was a victim under the Convention. In Orhan, the Court elaborated on relevant criteria for deciding on this issue (see especally para. 358). Applying those criteria in the recent Chechen cases, the Court held that not just parents of disappeared, but also siblings were victims of a violation of the prohibition of inhuman treatment (Article 3 ECHR). For those interested in comparative law, it might be interesting to take a look at the practice of the Inter-American Court of Human Rights. Of special relevance for the issue at hand, is the Court's formal (November 2007) interpretation of its earlier judgment in the case of La Cantuta v. Peru. The interpretation contains an elaborate analysis of the notion of "victim", including a highly interesting concurring opinion of judge Cançado Trinidade with references to Goethe and Pascal!

- Finally, one may wonder when the Court will conclude that the problem of disappearances is a structural one in Chechnya, calling for more general measures on the part of the State. In Ibragimov, we now only find this somewhat subdued statement (para. 84): 'The Court notes with great concern that a number of cases have come before it which suggest that the phenomenon of “disappearances” is well known in the Chechen Republic.'

In four of the five cases, the applicants were assisted in bringing their applications by the NGO Russian Justice Initiative. For its press release, see here. More information on earlier Court rulings in Chechen cases can be found on their website. In the fifth case, Betayev and Betayeva, another NGO, Memorial, gave assistance and advice to the applicants. For a very elaborate analysis of the legal and factual context of the dissappearances issue, see the 2005 Human Rights Watch report Worse than a War.

To be continued soon: on 12 June, the Court will issue judgments in two other disappearance cases from Chechnya.

Monday 2 June 2008

What's in a name?

A local Turkish court ordered the closure of a Istanbul-based LGBT association (one of the only ones in the country) last Thursday . The name of the Lambda Istanbul Lesbian Gay Bisexual and Transvestites Association was found to be contrary to Turkish morals, since it contained words describing sexual identity. This is part of a press release to be found on Jurist Legal News and Research:

In 2005, Turkish prosecutors rejected a demand by Ankara's deputy governor to shut down gay rights group Kaos Gay and Lesbian Cultural Research and Solidarity Association. The governor's office argued that the title and purpose of the group violated the Turkish Civil Code, which prohibits associations against law and morality, but prosecutors disagreed. A protective clause against anti-gay discrimination was written into the country's penal code in 2004 in an effort to strengthen Turkey's bid to join the European Union, but it was later removed by Justice Minister Cemil Cicek, according to gay rights activists. The EU has said that Turkey must implement human rights reforms before it would be admitted to the EU, but has given no specific instructions that GLBT rights should be included in the changes.

The Lambda Association already announced it will appeal the case, eventually taking it to the European Court of Human Rights if higher Turkish Courts uphold the ban. For BBC coverage of the case, see here. For those interested in more context: last month, Human Rights Watch released a report on gender, sexuality and human rights in Turkey.

The European Court of Human Rights has issued judgments in several cases on GLBT rights. The most famous is undoubtedly the classic case of Dudgeon v. the United Kingdom (1981), in which the Court held that a Northern Irish law criminalising sexual acts between consenting male adults violated the right to privacy of Article 8 ECHR. Much more recently - and more relevant for the Turkish situation - the Court found a violation of Article 11 (freedom of assembly and association) in the case of Bączkowski v. Poland (2007), involving a prohibition of certain demonstrations for gay and lesbian rights in Warsaw.

The President of the Parliamentary Assembly of the Council of Europe, Lluís Maria de Puig, expressed his concern over the ban. For the press release, see here.

We'll keep you informed on whether and when the case reaches the European level. This case was pointed out to me by my good friend Felix Ronkes Agerbeek. Thanks, Felix!