
Wednesday, 27 May 2009
New Scottish ECHR Resource

Tuesday, 26 May 2009
First Anniversary

Paper on Judicial Borrowing and the ECtHR

Why do some international courts and judges extensively cite decisions from other courts whereas others do not? I argue that judges anticipate what external citations communicate to third parties. Depending on their institutional environments, judges expect more or less scrutiny for engaging sources of law other than the primary treaties that they are delegated to interpret. A global analysis of cross-citation patterns and an in-depth analysis of citations to and from the European Court of Human Rights (ECtHR) are consistent with the implications of this argument. Contrary to its transnationalist reputation, the ECtHR is cautious in citing other courts although ECtHR judges regularly refer to external decisions in separate opinions. The propensity of ECtHR judges to cite external sources is correlated with judicial ideology. The findings have implications for debates on transjudicial communication, the diffusion of international legal norms, the fragmentation of international law, and international judicial behavior.
The paper is written from a social sciences perspective and includes a 'Global Matrix of International Court Citation Patterns'. Enjoy reading!
Friday, 15 May 2009
Two Free Articles from HRLR

- Robin C.A. White and Iris Boussiakou, Separate Opinions in the European Court of Human Rights;
- Samantha Besson, Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?
Enjoy reading!
Thursday, 14 May 2009
DNA Test to Establish Who the Father Is

The Court assessed the case under Article 8 ECHR (right to respect for private life). The Court held that the situation indeed fell within the scope of that provision, since (para. 29):
Establishment of paternity of the applicant’s daughter is a matter related to the “private life” of the applicant, who bears full responsibility for her minor child. Recognition of the natural father, apart from its financial and emotional purposes, may also be important from the point of view of the applicant’s social image, her family medical history and the web of entwined rights and duties between the biological mother, biological father and the child concerned.After this broad and nicely worded assessment, the Court indicated the importance of the DNA test as a piece of evidence in this case (para. 34):
The Court does not lose sight of the fact that today a DNA test is the only scientific method of determining accurately the paternity of the child in question; and its probative value substantially outweighs any other evidence presented by the parties to prove or disprove the fact of an intimate relationship. Furthermore, the applicant suggested that she and the defendant had concealed their relationship; hence the genetic examination could have been the only persuasive evidence of the disputed paternity.Finally, the Court noted that a clear answer on the issue of paternity was also in the best interests of the child. By both declaring the first DNA test inadmissible and not ordering a second one. the domestic authorities had failed to strike a fair balance between the competing interests of the parties (note that no broader societal interest was at stake here), "with due regard to the best interests of the child".
For further references to other paternity cases dealt with udner Article 8 ECHR, I refer the reader to para. 28 of the judgment and to p. 147 ff. of Alastair Mowbray's 2004 book entitled 'The development of positive obligations under the European Convention on Human Rights by the European Court of Human Rights'.
Monday, 11 May 2009
Libel Amongst Politicians During Campaign

KARAKÓ v. HUNGARY
The following is a summary of the Karako judgment, which involves an Article 8 complaint by an Hungarian politician following the refusal of the Hungarian courts to allow the criminal prosecution of a critic for supposed libel against the applicant related to critical remarks made during an election campaign:
1. The judgment starts with the premise that there is no real conflict between article 8 and article 10 insofar as article 10.2 protects the rights of others, which would include rights recognized under “private life”;
2. However, there is no independent and general right to reputation under article 8: a “prudent approach” is required to finding positive state obligations to protect “private life in general” – any such measures should be consistent with article 10;
3. Cases involving reputation/defamation should be resolved under the framework of article 10 -- irrespective of which provision is invoked or the nature of complaint – since article 10 is the natural conceptual setting “specifically designed by the drafters” for solving such conflicts;
4. Article 8 protects both the personal identity (image etc) and personal integrity (self-esteem, development of personality and the like). These only extend to reputation, however, when the attack on reputation is so severe as to affect one’s personal integrity: that is when (a) the factual allegations (b) were of such a seriously offensive nature that (c) their publication had an inevitable direct effect (d) on one’s private life (reference to Petrina v. Romania, which had to do with allegations of secret service collaboration, a sore point in a post-Communist society) – by implication, value judgments should not trigger article 8 protection in principle;
5. Crucially: article 8 does not extend to harm to reputation that - as is usually the case - primarily affects one’s public standing (‘the external evaluation of the individual’), rather than self-esteem – according to the Court, this is a common distinction in European law (DP: usually known as the difference between insult and defamation), and article 8 was designed to protect personal integrity, not one’s social standing;
6. The judgment, rather explicitly, departed from the Pfeiffer v. Austria line of cases by noting that “reputation has only been deemed to be an independent right sporadically” – the lone dissenter in the case disputed this by arguing, in effect, that Pfeiffer etc was already settled law;
7. The expression at issue in the case was protected value judgment – had Hungary gone ahead with its criminal prosecution, it would have violated article 10 of the Convention.
Some of us believe that this ruling, if endorsed by other sections of the Court, would go a long way toward addressing the concerns of the free expression community regarding the proper balance between article 8 v. article 10 interests in the defamation context. The challenge will be for other sections of the Court, and eventually the Grand Chamber, to steer closer to the path of Karako, rather than Pfeiffer/Petrina. At the moment, I think it is fair to say there is diverging jurisprudence among the various sections on this question (or central parts thereof), and Karakó offers hope for a re-orientation that takes proper account of the implications for free expression.
Interestingly, Karakó is also one of two article 10 judgments issued in April that is classified by the Court’s own database as Importance 1 (“High importance, Judgments which the Court considers make a significant contribution to the development, clarification or modification of its case-law, either generally or in relation to a particular State”). The other one, another landmark case from Hungary, was Társaság (appl. no. 37374/05) on the right of access to state-held information and records.
Wednesday, 6 May 2009
New Articles in EHRLR

This article argues in favour of the institutionalisation of judicial training relating to the European Convention on Human Rights 1950 through the establishment of a European Judicial Training Institute on Human Rights attached to the European Court of Human Rights. Examines the reasoning behind the need for judicial training on the Convention and assesses whether such training should be dispensed at national or European level. Discusses the potential status, structure, and organisation of a Judicial Training Institute on Human Rights.Secondly, an article by Marton Varju on 'Transition as a Concept of European Human Rights Law'. This is the abstract:
This article discusses, with reference to case law, the transition of the Central and Eastern European accession states, focusing on how the European Court of Human Rights has been able to accommodate the fact that many Contracting States required a complete transformation of their legal and political systems. Examines the distinction between rights under the European Convention on Human Rights 1950 that allow a margin of appreciation and those that prohibit such moves, including political rights, proprietary rights, and the application of arts 3, 6, 7, and 8 of the Convention.Finally, Matthew Smith has written on 'The Adjudicatory Fact-finding Tools of the European Court of Human Rights':
This article discusses the adjudicative fact-finding techniques employed by the European Court of Human Rights. Examines: (1) the relevant jurisdictional framework, commenting on the reasonable deference to national findings of fact and the lack of strict rules of evidence; (2) the burden and standard of proof in proceedings under the European Convention on Human Rights 1950; (3) inferences and presumptions of fact as adjudicatory tools for fact-finding; (4) limits on the use of inferences and presumptions of fact in human rights adjudication; and (5) the implications of the findings of procedural violation of the Convention.The articles can be found on Westlaw.
Monday, 4 May 2009
Protocol 14 Bis - The Interim Solution

The proposed Protocol 14-Bis in effect takes two crucial elements from the broader reform package of Protocol 14 proper, and seeks to give these a more immediate effect. The two elements are the possibility for a single judge (instead of currently a committee of three) to declare plainly inadmissible cases inadmissible. Secondly, Committees of three judges would be allowed to issue judgments (now only 7-judge Sections of the Court are allowed to do so). Obviously, this would spare time and allow the Sections to dedicate more time to the more important cases. The essential difference with Protocol 14 is, that Protocol 14-Bis would enter into force almost immediately for each state that ratifies it (and thus apply to cases against that state). Thus, it would no longer be possible for a state to block the entry into force for the other state parties.
The Parliamentary Assembly reacted positively to the proposal, basing itself on a report on the issue by one of its members, the Dutch senator Klaas de Vries. De Vries estimated that the introduction of the proposed measures would result in an increase of 20 to 25 % in the capacity of the Court to process cases. He labels the current a situation as a "force majeure' for which Protocol 14-Bis could offer a solution in the short run (and avoid the Court becoming as crushed as the tomatoes in the can).
Importantly, Spain, the current Chair of the Committee of Ministers, is seeking to take the issue forward at the next ministerial meeting in Madrid. It is at that meeting that a parallel solution is also envisaged - declarations from state parties that the Court could apply vis-Ã -vis them parts of the pending Protocol 14. Another way of circumventing the current deadlock. For the press release of the Parliamentary Assembly, click here.
The "Bis"-solution seems to be a justified, although not entirely unproblematic way to address at least part of the case-load problem. The downside of taking this path, is that the pressure on Russia to ratify Protocol 14 itself may decrease. But in the current situation, that is a risk worth taking, in my opinion.
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