Thursday 25 June 2009

Article on ECHR Impact in Russia

Alexei Trochev, of the University of Wisconsin, has just posted an article on SSRN on the impact of the ECHR in Russia, based on elaborate research of Russian sources: 'All Appeals Lead to Strasbourg? Unpacking the Impact of the European Court of Human Rights on Russia'. This is the abstract:

The author explores how Russian government officials and judges interact with the European Court of Human Rights (ECtHR) and argues that the Russian judiciary may be the most ECtHR-friendly branch of Russian government. Russian judges increasingly refer to the jurisprudence of the ECtHR, despite facing a host of pressures to do otherwise. As a result, the Russian legal system’s adherence to the standards of the 1950 convention is a complicated work in progress that develops in fits and starts and in which those in power wrestle with the question of their legal autonomy to limit the domestication of European human rights standards in Russia’s governance.
Well worth a read!

Wednesday 24 June 2009

Problems in Appointing New ECtHR Judges

A procedural battle is being waged about the appointment of a new Ukranian Judge at the Court. There is currently no Ukrainian judge, which has meant thus far that for each case an ad hoc judge had to be appointed. The origin was the fact that in 2007 one of the three candidates on the list submitted to Ukraine withdrew. Thusfar, the authorities refused to submit a new third candidate. Instead they have submitted a completely new list, without even justifying such a move with a reference to exceptional circumstances. This is the report on the issue by rapporteur Dick Marty of the Parliamentary Assembly of the Council of Europe (PACE). Both Ukraine and PACE now want the Committee of Ministers to ask the Court for an Advisory Opinion. To be continued...

Thanks to my colleague Leo Zwaak for pointing this out to me!

Meanwhile PACE did elect a new judge in respect of San Marino, Ms.Kristina Pardalos. for an overview of the votes cast, click here. And here for the CVs of the three candidates.

The saga of finding a successor for the Maltese judge Bonello is also still continuing, as the Times of Malta reports. Thus far Malta has failed to submit a list of candidates which contains at least one woman.

Monday 22 June 2009

Article on ECtHR Overruling its Own Case Law

The newest issue of the Human Rights Law Review has just been published. Its opening article is on the European Court of Human Rights: Alistair Mowbray, 'An Examination of the European Court of Human Rights’ Approach to Overruling its Previous Case Law'. This is the abstract:

The article begins with a consideration of the views of commentators, from both inside and outside the Strasbourg system, as to the nature of precedent within the jurisprudence of the Court. The approach of the original Court is then examined. This is compared with the contemporary case law of the full-time Court and three justifications for overruling established rulings are identified in the modern jurisprudence. Institutional features of the overruling process, including the roles of third parties and Court-directed changes, are addressed. Conclusions are drawn as to the present Court's reluctance to expressly acknowledge that it is overruling established case law and its failure to always provide adequate justifications of the social or scientific developments underpinning its revised jurisprudence.
Enjoy reading!

Friday 19 June 2009

Article on Judges' Views on the Court

The newest issue of the Netherlands Quarterly of Human Rights (Volume 27, No. 2, 2009) contains an article by Robin C. White and Iris Boussiakou entitled 'Voices from the European Court of Human Rights'. It is based on interviews with a number of Strasbourg judges themselves and thus provides interesting insights on the Court's own views on its own function. Here is the abstract:

The future of the Strasbourg Court, a large and very busy court, has been the subject f much discussion. The capacity of the Court to handle the volume of admissible cases remains a significant challenge, and is made more difficult by the absence of ratification by all contracting parties of Protocol No. 14. Ten years after the establishment of the new permanent court, nine judges reflected on aspects of the work of the Court and the challenges it faces. The main purpose of this article is to put into the public domain some extracts from those interviews, which cover a wide range of issues. The voices from the Court are offered in the context of an argument that the contracting parties need to recognise the constitutional nature of the Strasbourg Court, and should be, but probably are not, willing to change the admissibility rules to make determination by the Strasbourg Court a matter of discretion rather than entitlement.

Tuesday 16 June 2009

Pinto Law Receives Benefit of the Doubt

A very large percentage of the cases coming to the Court from Italy have traditionally concerned complaints about judicial proceedings at the domestic level that took too long and for which no remedy existed. After numerous instances in which the Court found violations, Italy introduced the so-called Pinto law which enables claimants on the national level to have such situations remedied, at least in the sense of being able to claim compensation. Today the European Court has declared a complaint about the effectiveness of the new law (in combination with another law) inadmissible in the case of Daddi v. Italy. Since the case itself is available only in French and is procedurally complex, here is the whole press release of the Court:

The European Court of Human Rights has declared inadmissible the application lodged in the case of Daddi v. Italy (application no. 15476/09) concerning the effectiveness of the “Pinto Act” after the entry into force of the second paragraph of Article 54 of Legislative Decree no. 112/2008, which provided that an application could not be lodged under the Pinto Act unless an urgent request for a hearing (istanza di prelievo) had first been made to the administrative courts.

The applicant, Alda Daddi, is an Italian national who was born in 1937 and lives in Comeana Carmignano (Italy). On 14 November 1994 Mrs Daddi asked the Tuscany Regional Administrative Court to set aside a number of planning decisions adopted between 1985 and 1994 by Carmignano District Council. On the same day she asked for a date to be set for the case to be heard. On 13 September 2006 she again asked for a date to be set for a hearing. The hearing was held on 12 April 2007. In a judgment of 10 May 2007, the Regional Administrative Court gave judgment in Mrs Daddi’s favour. As the judgment had not been served beforehand, it became final on 31 October 2008.

On 6 March 2009 Mrs Daddi complained to the European Court of Human Rights that the length of the proceedings had been excessive. She submitted that she had not lodged an application under the Pinto Act, since the Italian courts would have declared such an application inadmissible on account of the entry into force, on 25 June 2008, of the second paragraph of Article 54 of Legislative Decree no. 112/2008. The applicant emphasised that the proceedings had already ended by the date of the entry into force of the legislative decree. She relied on Article 6 § 1 (right to a fair trial within a reasonable time) and Article 13 (right to an effective remedy) of the European Convention on Human Rights.

The Court considered that applications to the courts of appeal under the Pinto Act were an accessible remedy, and that there was not yet any cause to doubt the effectiveness of that remedy at present. It noted that it could not be excluded that the second paragraph of Article 54 of Legislative Decree no. 112/2008 might be interpreted by the Italian courts in such a way as to make any application under the “Pinto” procedure concerning the length of administrative proceedings which had ended before 25 June 2008 inadmissible solely because no urgent request for a hearing had been made. Such a practice might indeed give cause to absolve applicants in that position from the obligation to make use of the “Pinto” procedure.

However, the Court considered that mere doubt about the prospects of success of a particular remedy which was not quite evidently bound to fail did not constitute a valid reason to justify a decision not to avail oneself of it. Moreover, the applicant had not provided any example of a domestic decision to the effect she had relied on in her submissions. In addition, no settled case-law could have emerged from the higher courts in the short space of time which had elapsed between the entry into force of Legislative Decree no. 112/2008 and the lodging of the present application. Furthermore, the Court observed that an interpretation compatible with the principles of the Convention did not seem to be excluded by the wording of the provision concerned and that, as far as possible, such an interpretation was binding on the Italian courts both under the Convention and under domestic law. Consequently, the Court concluded that in order to comply with Article 35 § 1 of the Convention Mrs Daddi ought to have applied to the competent court of appeal by virtue of the Pinto Act. It followed that the application had to be declared inadmissible for non-exhaustion of domestic remedies.

Thursday 11 June 2009

Litigation and Implementation Research Project

A consortium of researchers from a range of Council of Europe member states has produced a series of reports on litigation before the European Court and implementation of its judgments on the national level: the JURISTRAS project. The website contains all the reports and a host of additional information. A very useful resource! This is the summary of the project:

The margin of appreciation doctrine of European Court of Human Rights gives states leeway in their interpretation of the European Convention on Human Rights. States also have the freedom to decide how they implement judgments finding violations against them. This has meant that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECHR and human rights actors (both governmental and non) in CoE member states. The nine partners of the project represent nine CoE members (Austria, Bulgaria, France, Germany, Greece, Italy, Romania, Turkey and the United Kingdom), who can in turn be seen to represent at least part of the vast diversity of countries in that intergovernmental organization. The project coordinators at the Athens-based Hellenic Foundation for European and Foreign Policy structured the project to focus primarily on discrimination and the rights of minorities and other marginalized groups, and those themes have featured in all of the reports produced thus far.

The various research reports, which have been spread over the course of three years, began with state of the art reports and case study reports, which provided the historical background for understanding the current relationships between each respective state and the Court. These reports provided insight into the complex ways that ECHR judgments affect, and are affected by, domestic actors, including governmental institutions, non-governmental human rights organizations, academics, lawyers and judges, the media, etc. Those reports were followed by a collection of comparative analyses, which focus on a variety of issues including gender rights, rights of ethnic minorities, rights of immigrants and asylum seekers, state-church relations, discrimination, and minority rights in general. Each partner then completed state-level policy recommendations, which were distributed to national legislators. Additionally, interviews with relevant individuals including government officials, prominent judges and lawyers, NGO executives, and leading academics were carried out to compliment the research and provide additional insight into the attitudes of key human rights players in each state.

Throughout the course of the research, different issues proved to be salient in each state. In some states discrimination against ethnic minorities has been identified as a pressing issue (Kurds in Turkey and Roma in Bulgaria, Romania and Greece). In others, cases involving gender and homosexual rights (United Kingdom) or freedom of expression (Austria) have made up a substantial amount of the case load, while still others experience immigration and asylum issues (France, Germany, United Kingdom), prisoner rights issues (Italy), religious minority issues (Greece) or issues regarding restitution of property seized by the state (Bulgaria and Romania). As the reports display, the human rights issues across the CoE vary considerably, often as much as language and culture.

The project is now in its final stages and one book discussing the project’s findings is set to be published, while a second is currently being drafted. The state of the art reports, the case studies, the policy recommendations and the comparative analyses are all available on the project’s website.

Wednesday 10 June 2009

Landmark Judgment on Domestic Violence

The Court has just passed judgment in a landmark case on domestic violence: Opuz v. Turkey ( 33401/02). The Court ruled that Turkey had failed to protect the applicant and her mother against grave instances of domestic violence and even found that the situation amounted to gender-based discrimination.

The applicant and her mother had both been threatened, gravely assaulted and beaten by the applicant's husband on numerous occasions during the course of their marriage. The husband had even tried to overrun the two with his car, thereby gravely wounding the mother. The injuries sustained had been life-threatening. Several times the two women complained to the police about the husband's actions. Although he was prosecuted for some of the violence, the prison term of three months was later commuted to a fine. After his release the violence continued and eventually ended in the killing of the mother by the applicant's husband.

The Court, in a very extensive judgment, dealt in detail with the applicant's claim that the authorities had failed to offer sufficient protection against domestic violence. Not surprisingly, it found a violation of the right to life (Article 2ECHR) concerning the murder of the mother, since the authorities had known from previously reported incidents that the husband was extremely violent. But more innovatively, it also concluded that Article 3 had been violated for "failure to take protective measures in the form of effective deterrence against serious breaches of the applicant's personal integrity by her husband." (para. 176). Importantly, the Court emphasized that when authorities are aware of instances of grave domestic violence it falls upon them to undertake effective action of their own motion. Simply waiting for the victim to step forward and to ask for protection is not sufficient. Finally, the Court found a violation of the prohibition of discrimination on the basis of gender (Article 14 ECHR) in conjunction with Articles 2 and 3. Again drawing on CEDAW and a range of case law of other human rights institutions, the Court held that (para. 191) "the State's failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional." As to the approach to domestic violence in Turkey and specifically in South-Eastern Turkey, where the applicant lived, the Court found that (para. 198):

The applicant has been able to show, supported by unchallenged statistical information, the existence of a prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence.
The Court based itself amongst others by reports of NGOs such as Amnesty International, but also on that of a local NGO. Finally, it concluded:

200. Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence.
201. Taking into account the ineffectiveness of domestic remedies in providing equal protection of law to the applicant and her mother in the enjoyment of their rights guaranteed by Articles 2 and 3 of the Convention, the Court holds that there existed special circumstances which absolved the applicant from her obligation to exhaust domestic remedies. It therefore dismisses the Government's objection on non-exhaustion in respect of the complaint under Article 14 of the Convention.
202. In view of the above, the Court concludes that there has been a violation of Article 14, in conjunction with Articles 2 and 3 of the Convention, in the instant case.
The great importance of this judgment can be found in the Court's elaborate acknowledgement of the seriousness and viciousness of the crime of domestic violence. State obligations are spelt out in detail and the Court significantly recognised that violence against women is a form of unequal treatment. For comparative lawyers it is interesting to see how the Court draws on human rights norms from other jurisdictions, such as CEDAW and the Inter-American Belem do Para Convention (on the eradication of violence against women). An important step forward in the fight against domestic violence!

The press release of the Court can be found here. For the press release of NGO Interights, third party intervener in the case, and their brief submitted to the Court, click here. Even CNN is reporting on the case here.

Friday 5 June 2009

Kenedi v. Hungary (Access to Information)

In its recent judgment Kenedi v. Hungary (Appl. no. 31475/05), the Court has given more clarifications on access to information. The applicant in the case was a historian doing research on the State Security Service. For several years he tried to get access to relevant information from the Ministry of the Interior, but to no avail. After continued refusals, he obtained domestic court orders to enforce access. The Ministry, however, continued to obstruct, for example by requiring that Kenedi would sign a declaration of confidentiality. Kenedi refused, also because the Court order had not mentioned confidentiality as a requirement. When he was later given access to part of the information concerned, he was not allowed to publish it. At the moment of the proceedings in Strasbourg Kenedi still did not have access to all documentation.

The Court found violations of a number of ECHR provisions. Article 6 ECHR (fair trial) was violated because of the total length of the proceedings and enforcement - over ten years. Article 10 was also violated in the Court's view. It reiterated that (para. 43) "access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant's right to freedom of expression." In this case, the inteference with the applicant's right had not been prescribed by law. The Court held (para. 45):

The obstinate reluctance of the respondent State's authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness. The essentially obstructive character of this behaviour is also manifest in that it led to the finding of a violation of Article 6 § 1 of the Convention (see paragraph 39 above) from the perspective of the length of the proceedings. For the Court, such a misuse of the power vested in the authorities cannot be characterised as a measure “prescribed by law”.

Finally, Article 13 ECHR (effective remedy) - in conjunction with Article 10 - had also been violated, since the Hungarian system did not provide for an effective way of remedying the violation of the freedom of expression in this situation.

Although again the Court does not formulate a general right to access to documents, what it does clarify is that once access on the national level is ordered (in this case by a court), such access should be effective and be given within a reasonable time. In this case, the authories had been so obstructive, that the European Court did not shy away from calling their behavior arbitrary.

A case for the history books - and for Court watchers too, of course!

The press release can be found here.

Wednesday 3 June 2009

New Article on Behrami and Saramati cases

The decision of the Court on the actions of peacekeepers in Behrami and Saramati keeps yielding food for thought for academics, as a new article in the latest issue of the International Community Law Review shows. Alexander Breitegger of the University of Vienna has written 'Sacrificing the Effectiveness of the European Convention on Human Rights on the Altar of the Effective Functioning of Peace Support Operations: A Critique of Behrami & Saramati and Al Jedda'. This is the abstract:

The European Convention of Human Rights is unlikely to be an effective remedy for local individuals alleging human rights violations by European states participating in peace support operations abroad in the future. This conclusion is substantiated by analysing the restrictive and legally flawed stance taken by the European Court of Human Rights in the joint cases of Behrami and Saramati which had not only a precedential effect on this court's own jurisprudence but also on the case of Al Jedda v. UK Secretary of Defence before the UK House of Lords. Ultimately, the decisions in these cases may be understood by the choice to let the rationale of effective functioning of peace support operations prevail over the effectiveness of human rights protection of local individuals.

Tuesday 2 June 2009

ECHR Seminar in London

On Wednesday 10 June, the Nuffield Foundation in London is hosting a seminar entitled 'Scrutinising the Practice of the European Court of Human Rights: Fact-Finding Missions and the Nomination & Election of Judges'. The event will include two panels:

Panel One: Fact-Finding Missions of the European Court
Prof. Philip Leach and Costas Paraskeva will outline the findings of a research project recently completed by the Human Rights and Social Justice Research Institute at London Metropolitan University analysing the fact‐finding missions carried out by the European Court (see: This project was funded by the Nuffield Foundation.
Chair: Andrew Drzemczewski, Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe

Panel Two: The Nomination & Election of Judges to the European Court
Andrew Drzemczewski, Head of Secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE), will discuss the appointment of European Court judges, and the role of PACE in the process. He will respond to the criticisms recently made about the process by Lord Hoffmann in the 2009 Judicial Studies Board Annual Lecture (see:
Chair: Andrea Coomber, Legal Practice Director, Interights

Venue: The Nuffield Foundation, 28 Bedford Square, London WC1B 3JS. Attendance is free of charge but registration is essential as places are strictly limited. To register email or telephone +44 (0) 207 133 5095.