Friday 21 August 2009

PACE Report on Political Abuse of Criminal Justice

As the Court is having its well-deserved summer break, I would like to point my readers' attention to a new report by the Parliamentary Assembly of the Council of Europe. Rapporteur Sabine Leutheusser-Schnarrenberger has written 'Allegations of politically-motivated abuses of the criminal justice system in Council of Europe member states'. The report addresses various worrying developments in some of the bigger member states on issues closely related to the right to a fair trial (Article 6 ECHR). This is the summary:

The Committee on Legal Affairs and Human Rights recommends a series of steps to strengthen the independence of judges and prosecutors across Europe to end politically-motivated interference in individual cases. The draft resolution exposes ways that politicians can interfere in criminal proceedings in four countries
representing the principal types of criminal justice system in Europe, analysing high-profile cases such as the dropping of the British Aerospace fraud investigation and “cash for honours” scandal in the United Kingdom, or the second Khodorkovsky trial and HSBC/Hermitage Capital and Politkovskaya murder cases in the Russian Federation. Inter alia the Committee calls for:
• in the United Kingdom, a reform of the Attorney General’s role to strengthen his or her accountability to Parliament and a reversal of the erosion of Legal Aid funding to avoid “two-tier” justice;
• in France, reconsideration of the proposed abolition of the juge d’instruction or – if the abolition is to go ahead – at least a strengthening of the independence of prosecutors who will take over this role; an increase in the resources at the disposal of the judiciary as a whole and of defence lawyers in particular;
• in Germany, the setting-up of judicial councils – which exist in most other European countries – so that judges and prosecutors are given a greater say in running the judiciary, and a ban on the possibility for Justice Ministers to instruct the prosecution in individual cases;
• in the Russian Federation, a series of reforms to reduce the political and hierarchical pressures on judges and put an end to the harassment of defence lawyers in order to combat “legal nihilism” in the Russian Federation, as a precondition also for successful co-operation between Russian and other European law
enforcement authorities.

Monday 17 August 2009

ECHR Contributions in Irish Yearbook

The newest volume of the Irish Yearbook of International Law has been published, as the International Law Reporter reports. It contains two ECHR-related contributions:

* William A Schabas & Aisling O’Sullivan, Of Politics and Poor Weather: How Ireland Decided to Sue the United Kingdom Under the European Convention on Human Rights
* Fiona de Londras, Shannon, Saadi and Ireland’s Reliance on Diplomatic Assurances Under Article 3 of the European Convention

Thursday 13 August 2009

Court's Summer Break

The Court's summer break has started in the sense that no new hearings will be held and no new judgments will be issued until the second week of September. This means that in the coming weeks blogging on here will be light, with only occasional posts.

Monday 10 August 2009

Switzerland will host future of ECHR Conference

Switzerland has agreed to host the high-level conference on the future of the European Court of Human Rights. It will be held in the city of Interlaken on 18 and 19 February 2010 during Switzerland's chairmanship of the Council of Europe. The main aim of the conference is to find ways to guarantee the effectiveness of the Court in the future in the light of the heavy case-load. It will look beyongd the current reforms of Protocols 14 and 14-bis.

The President of the Court has now issued a memorandum to all state parties on that conference, the full text of which can be found here. It includes such creative ideas as class action, the creation of a kind of Court of First Instance (in analogy to the European Court of Justice), but also very practical ideas such as increasing the dissemination of the Court's case law (to which this blog hopes to make its small contribution!).

Friday 7 August 2009

Parliamentary Assembly Lambasts Italy for Ignoring Court's Interim Measures

The chair of the Council of Europe Parliamentary Assembly's Legal Affairs Committee, Herta Däubler-Gmelin, and the Assembly's rapporteur on the implementation of ECtHR judgments, Christos Porgourides, have lambasted Italy for ignoring yet another interim measure of the Court. Last Sunday Italy sent back applicant Ali Toumi to Tunesia in spite of an interim measure by the Court requesting the country not to extradite Toumi. The two Parliamentary Assembly officials have called this "unacceptable" and "disgraceful". According to them, this is the fourth case since 2005 in which Italy went against the orders of the Court - which is indeed very worrying in itself.

In an earlier report (April 2009), the Council of Europe's Commissioner on Human Rights had already voiced his concerns on the general issue:

The Commissioner remains worried by a number of deportations that have taken place, especially from Italy to Tunisia, and by credible reports showing that on certain occasions the deportees had been subjected to torture in the latter country. Of special concern to the Commissioner have been two such cases where deportations to Tunisia took place in 2008 even though the European Court of Human Rights had indicated interim measures under its Rule 39, requesting Italy to stay deportations while the deportees’ applications were pending before it. Even though the Commissioner is aware of the difficulties faced by member states in their efforts to protect their societies from terrorist violence, he remains deeply concerned by state practices that contravene fundamental European human rights standards such as the one prohibiting in absolute terms torture or inhuman or degrading treatment or punishment. The Commissioner strongly opposes forced returns, even if they occur under cover of diplomatic assurances, to countries with long-standing, proven records of torture. He calls on the Italian authorities to urgently review their policy in this field and effectively conform to the binding interim measures ordered by the European Court of Human Rights.
For the press release of the Parliamentary Assembly, click here.

Thursday 6 August 2009

Article in LJIL on Article 3 ECHR

The September (!) issue of the Leiden Journal of International Law has already been published and contains an article which takes a fresh look at the absolute character of Article 3 ECHR: 'In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed', authored by Hemme Battjes of the Free University Amsterdam. A clear account of a very important issue. This is the abstract:

According to well-established case law of the European Court of Human Rights, the prohibition on expulsion resulting in ill-treatment under Article 3 of the European Convention on Human Rights is ‘absolute’: it does not allow for balancing of interests. Analysis of the Court's case law, however, shows that the application of the provision involves various forms of balancing, for example when delimiting the burden of proof or qualifying an act as ill-treatment. The absolute character expresses a value judgement about the importance of the prohibition, and it serves as an argumentative tool applied to sustain wide or inclusive readings of Article 3 ECHR.

Wednesday 5 August 2009

A New Advisory Opinion May Be Coming Up

At its meeting on 8-9 July the Committee of Ministers (in its composition of deputies) of the Council of Europe decided to ask the Court for clarity on the issue of candidates lists for possible new judges submitted to the Parliamentary Assembly. The requests directly follows up on the dispute on the problematic Ukrainian list of candidates. On that matter, see my earlier post here. If the Court issues an Advisory Opinion, it would be the second one in its history. Last year, it issued an Opinion on an issue concerning gender aspects of candidate lists.

These are the questions that were asked by the Committee of Ministers concerning the current issue:

a. Can a list of three candidates, nominated by a High Contracting Party for election as a judge to the European Court of Human Rights in respect of the High Contracting Party and submitted to the Parliamentary Assembly, be withdrawn and replaced with a new list of three candidates by that High Contracting Party? If yes, is there any time limit?

b. Can candidates for the post of judge at the European Court of Human Rights be considered as nominated by a High Contracting Party within the meaning of Article 22 of the European Convention on Human Rights if the list containing their names has been withdrawn by that High Contracting Party?

c. Is the Parliamentary Assembly obliged to consider a list of candidates submitted by a High Contracting Party which replaces a list previously submitted but withdrawn by that High Contracting Party?

2. furthermore, they invited the Court to pronounce on the following two additional questions:

a. If one or more candidates on a list of candidates submitted to the Parliamentary Assembly by a High Contracting Party withdraw(s) before the Parliamentary Assembly has voted on the list, is that High Contracting Party obliged under the European Convention on Human Rights to submit an additional candidate or candidates to complete the list or is it entitled to submit a new list?

b. Are the conditions in paragraphs 1 and 2 of the Appendix to Resolution 1432 (2005) of the Parliamentary Assembly of the Council of Europe in breach of the Assembly’s responsibilities under Article 22 of the European Convention on Human Rights to consider a list, or a name on such a list, on the basis of the criteria listed in Article 21 of the Convention?
This is the link to the official document. The request has been transmitted to the Court's President on 15 July.

Tuesday 4 August 2009

Travaux Préparatoires Available Online

For all those interested in the historical roots of the ECHR, but with no direct access to an academic library, I can recommend the site of the Court's own library. The site contains a full page with links to the Travaux Préparatoires of the Convention, in both French and English. A great resource, although the site adds a caveat of its own:

The Travaux Préparatoires documents are internal working documents of the Registry which were produced at a certain time and for a certain purpose. There is no guarantee of their completeness and they should not be cited. The information they contain should be cross-checked against the published work in 8 volumes which is the official version of the Travaux Préparatoires. Citations should be made to this work.

Monday 3 August 2009

Article on Rape, Torture and ECHR in ICLQ

Clare McGlynn of Durhan Law School has published 'Rape, Torture and the European Convention on Human Rights' in the newest issue of the International and Comparative Law Quarterly (Vol. 58-3). This is the abstract:

This article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Court's achievements in recognizing rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.