Tuesday 22 December 2009

Last Post of the Year: Fox Hunt, Protocol 14, and More

Dear readers, at the end of this year a final post with a miscellany of issues. First, the Court's site offers a range of new features to make its case law more easily accessible. An important innovation is the translation of key judgments in over ten languages (to be found through HUDOC) More information on this can be found here. That same page also contains a host of links to online translated collections of case-law in many more languages by non-ECHR sites. Another great innovation is that it is now finally possible to search on HUDOC for judgments by the Grand Chamber, ordinary chambers and committees. Finally, a list of keywords to search HUDOC more effectively is upcoming. And for another way of keeping updated, several RSS feeds have been added here. All of this will hopefully help the often mentioned implementation of the ECHR at the national level.

Secondly, under the new Procedure of Protocol 14-Bis, the first judgments have been adopted by three-judge committees. This should pave the way for a more efficient handling of cases. Whereas until now, such committees could only declare cases inadmissible, they can now also issue judgments on the merits in cases dealing with issues on which there is well-estalbished case-law. In the first place, one can think here of repetitive judgments. the first of these judgments, Kressin v. Germany (Appl.no. 21061/06) and Jesse v. Germany (Appl.no. 10053/08) will be published online today and deal, not surprisingly perhaps, with complaints on the excessive length of judicial proceedings. The entry into force of that other Protocol, 14, might be very near, as the Council of Europe reports that the Russian Duma has agreed to resume the procedure for Protocol 14 ratification. See also the report of Julien Frisch, over at Watching Europe.

Thirdly, the newest issue of the Göttingen Journal of International Law (vol. 1, No. 3) has just been published and contains amongst others 'When Soering Went to IraqŠ: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights Al-Saadoon Case', by Cornelia Janik and Thomas Kleinlein. This is the abstract:

In its admissibility decision in the Al-Saadoon case the ECtHR held that the United Kingdom had jurisdiction over the applicants, who had been arrested by British forces and kept in a British-run military prison in Iraq. Just before the respective mandate of the Security Council expired on 31 December 2008, the applicants were transferred to Iraqi custody at Iraqi request and thereby exposed to the risk of an unfair trial followed by capital punishment. The authors trace back the ECtHR's case law concerning the extraterritorial application of the Convention and establish patterns how the ECtHR and the UK Courts did cope in the past with international law norms potentially competing with the Convention.
Finally, for a case that could qualify as one of the funniest of the year, as a kind of Christmas treat from Strasbourg, I can recommend the admissibility decision in Friend and Countryside Alliance and others (Appl.nos 16072/06 and 27809/08) of last week. In this decision, the Court dismissed the complaints of a group of hunters and others about the British ban on hunting with hounds (on foxes and other animals). The Court held in this decision that a person's hunting grounds do not fall within the concept of home nor can the huntng community be seen as an ethnic community. The Court was not of the view that (para. 44) "that hunting amounts to a particular lifestyle which is so inextricably linked to the identity of those who practise it that to impose a ban on hunting would be to jeopardise the very essence of their identity."

I wish all of you a very good holiday season and an excellent 2010, with hopefully an improved human rights situation in Europe and around the world!

Monday 21 December 2009

More on Interlaken

The upcoming conference in Interlaken next year on the reform of the supervision of the ECHR is already yielding a range of preparatory documents. The Commissioner for Human Rights of the Council of Europe has published a memorandum in which he gives his views. He points amongst others to the need to strengthen national supervision of human rights and specifically national monitoring by e.g. national human rights institutions. Not surprisingly the Commissioner also calls for more staff for his own office in order to make his own contribution to the ECHR supervisory system. In the past few years, the budget of the Council of Europe's institutions (apart from the Court) has indeed stagnated. Now that both attention and emphasis are being put more heavily on implementation of the Court's judgments, the enabling environment - as I would call it - of the Convention indeed needs reinforcement.

The Steering Committee for Human Rights (CDDH) in which all state parties are represented has now also made public its 'Opinion on the issues to be covered at the high-level Conference on the future of the European Court of Human Rights'. This document is probably the best indication of the issues to be addressed at Interlaken and also gives an insight in current thinking on the part of the states involved. It will, by the way, be the only intergovernmental contribution, to this conference, it is expected. Just to highlight a few points: the states seem to remain committed to the individual right of application. But further on in the document, an important proviso is added:

In the longer term, there lies the possibility that the Court might one day develop to have some degree of power to choose from amongst the applications it receives those that would receive judicial determination. The time is not yet ripe, however, to make specific proposals to this end.
It is also suggested that a system of fees might be introduced to reduce the number of clearly inadmissible applications. In this same context, the document mentions several options to make the filtering of applications more effective, such as:

(i) a new, separate body of judges within the Court, responsible for filtering;
(ii) additional judges appointed to the existing bench;
(iii) the discharge of certain judicial powers by members of the Registry;
(iv) at least in the short-term, until other solutions can be implemented, a rotating pool of judges taken from the existing bench.
The CDDH also calls upon the Court itself to be clear and coherent and "to take full accoonut of its subsidiary role" - is that a plea to revive a strong margin of appreciation application and in general to leave more to the state parties? One might question whether this way of handing responsibility back to national authorities will automatically strengthen human rights protection. In that sense, supervising human rights is not the same as raising children by giving them increased responsibilities. Caution is called for here.

The Secretary General of the Council of Europe, Thorbjørn Jagland, has also drafted his contribution (dated 18 December) to Interlaken, which will soon be online on the Council of Europe's website.

Finally, on the NGO front, action is also being undertaken to make sure that the reforms will truly happen and more specifically will really strengthen the system of supervision. As I reported last week, there is a joint NGO statement. The drafting NGOs of this document are now calling for other NGOs, in as many ECHR state parties as possible, to endorse this document to make civil society's voice resound in the hills around Interlaken. NGOs who want to endorse the document or who have further questions about it, can contact the main drafters at Europeigoteam at amnesty.org .

Friday 18 December 2009

ECHR Articles in NJECL

The first issue of the 'New Journal of European Criminal Law' (a continuation of the Journal of European Criminal Law) has just been published and contains various ECHR-related articles:

* Editorial: Taxquet v Belgium, R v Ponting, Trials by Jury and a Homage to Neil MacCormick, by Scott Crosby;
* Survey of Instances of Non-Compliance with Interim Measures Adopted under Rule 39 of the Rules of Court, by the Registry of the European Court of Human Rights;
* Decisions of the European Court of Human Rights Affecting Criminal Law/Criminal Procedure, by Richard Lang.

The entire issue can be accessed electronically here.

Thursday 17 December 2009

Conference on Application of ECHR and EC Law

On the 15th and 16th of January the Sant’Anna School of Advanced Studies in Pisa (Scuola Superiore di Studi Universitari e Perfezionamento Sant’Anna di Pisa) is organising a conference entitled 'National Judges and Supranational Laws: On the Effective Application of the EC Law and the ECHR'. This is the provisional programme:

January 15th 2010
9.00 - 9.30 Opening remarks:
Giuseppe Franco Ferrari (President of the Italian Association of European and
Comparative Public Law, DPCE)
Paolo Carrozza (STALS Editor)
Giuseppe Martinico and Oreste Pollicino (Convenors)
9.30 - 10.40 I panel
Chair: Elettra Stradella
9.30 – 9.50: Michal Bobek and David Kosa (Report on Czech Republic and Slovakia)
9.50 – 10.05: Matej Avbelj (Report on Slovenia)
10.05 - 10.25: Philipp Cede (Report on Austria and Germania)
10.25 – 10.40: Discussion
10.40 - 11.00

11.00 - 12.00 Break

II panel
Chair: Andras Sajo
11.00 - 11.15 : Maria Fartunova (Report on Bulgaria)
11.15 - 11.30: Pal Sonnevend (Report on Hungary)
11.30 - 11.45: Krystyna Kowalik (Report on Polonia)
11.45 – 12.00: Discussion

12.00 - 12.15 Break

12.15 – 13.35 III panel
Chair: Hjalte Rasmussen
12.15 - 12.30: Ioana Raducu (Report on Romania)
12.30 - 12.55: Irmantas Jarukaitis (Report on Baltic States)
12.55 - 13.20: Carl Lebeck (Report on Scandinavian States)
13.20 - 13.35: Discussion

13.35 - 15.00 Lunch

15.00 – 16.25 IV panel
Chair: Takis Tridimas
15.00 – 15.20: Cian Murphy (Report on UK and Ireland)
15.20 - 15.35: Nikolas Kyriakou (Report on Cyprus)
15.35 - 15.55: Elaine Mak (Report on the Netherlands and Luxembourg)
15.55 - 16.10: Discussion

16.10 - 16.25 Break

16.25 – 17.15 V panel
Chair: Antonio Lazari
16.25 - 16.45: Anne Levade (Report on France and Belgium)
16.45 - 17.00: Giuseppe Martinico and Oreste Pollicino (Report on Italy)
17.00 - 17.15: Discussion

17.15 - 17.30 Break

17.30 – 18.30 VI panel
Chair: Robert Harmsen
17.30 - 17.45: Francisco Pereira Coutinho (Report on Portugal)
17.45 - 18.00: Aida Torres Perez (Report on Spain)
18.00 - 18.15: Vassilis P. Tzevelekos- Stella – Eirini Vetsika (Report on Greece)
18.15 - 18.30: Discussion

20.00 Drink and dinner

January 16th 2010

9.00 - 11.00 VII Panel
Chair: Oreste Pollicino
Andras Sajo, “The interaction of domestic value judgments, traditions and ECHR human rights concepts”
Takis Tridimas, “Constitutional pluralism in EU and ECHR law”

11.00 - 11.15 Break

11.15 - 13.15 VIII panel
Chair: Giuseppe Martinico
Robert Harmsen, “Transformation of ECHR legal order and the post-enlargement challenges for the European Court of Human Rights”
Hjalte Rasmussen, “The Taciturn Court. About the European Court’s Complete Non-transparency of Willensbildung, its Poor Reasonings and Competence Transgressions”

13.15 - 13.30 Concluding Remarks
Giuseppe Martinico
Oreste Pollicino

For further information you can contact Giuseppe Martinico (martinico at sssup.it). The programme in pdf-format can be found here.

Tuesday 15 December 2009

Joint NGO Statement on the Interlaken Process

A number of leading human rights NGOs have just issued a joint statement on the Interlaken Process, on which I reported earlier here. The statement is entitled 'Human rights in Europe: Decision time on the European Court of Human Rights'. This is the full text, which can also be found in pdf-version here:

The system for the protection of human rights in Europe is under scrutiny. States are examining the European Court of Human Rights. At a Conference in February 2010 they will take decisions which could bring welcome reform to relieve the Court’s backlog of cases. Conversely, the decisions taken could undermine a body that has provided redress for the victims of human rights violations in Europe for 50 years.

People in Europe (future applicants to the Court) have an interest at least equal to that of the states in ensuring the long-term effectiveness of the Court. States should therefore inform the public about the debates and consult civil society in the lead-up to the Conference and throughout the reform process which follows it.

47 states in Europe have agreed to be bound by the European Convention on Human Rights. States’ respect for the Convention rights of some 800 million people is monitored primarily by the European Court of Human Rights, based in Strasbourg. The Court makes binding judgments in cases where individuals claim that their Convention rights have been violated and that the state has not granted redress. The implementation of the Court’s judgments is supervised by the Committee of Ministers, representing all 47 Council of Europe states.


Enhanced respect for human rights by the 47 Council of Europe member states must remain the priority -- in more than 80 per cent of its judgments, the Court has ruled that the European Convention on Human Rights had been violated. If states complied with their clearly established obligations under the Convention, the
number of applications to the Court would be significantly reduced. The Court faces difficult challenges in light of its resources, as a result of the enormous number of individual applications being lodged (nearly 50,000 application forms in 2008), coupled with the backlog of cases pending before it (more than 110,000).

The European Court of Human Rights must be a strong Court, accessible to individuals claiming violations of their Convention rights when they have had no effective redress domestically. It should be a Court which will give a reasoned decision on whether a case is admissible, or a reasoned judgment on the merits of a case, without undue delay. The Court should be given the resources by states to function properly, and not at the expense of other Council of Europe human rights mechanisms.


National Human Rights Protection
States must take concerted action to ensure greater respect for human rights and must provide effective domestic remedies when rights are violated. Better implementation of the Convention at national level would mean greater respect for human rights throughout Europe and would reduce the need for individuals to apply to the Court for redress. Fewer cases would be sent to the Court if states implemented the Court’s judgments by providing effective remedy and reparation and by taking steps aimed at ensuring the violation is not repeated, and if states implemented not only judgments against them, but also standards developed in all relevant judgments against other states. There would also be fewer cases brought about issues on which the Court has already clarified how the Convention should be applied (half of the Court’s judgments in the past 50 years are on “repetitive” cases).

Reform of the Court
Any reforms to the European Court of Human Rights should ensure that:
· the fundamental right of individual petition is preserved and not further curtailed;
· there is an efficient, fair, consistent, transparent and effective screening of applications received, to weed out the very high proportion (around 90 per cent) of applications that are inadmissible under the current criteria;
· judgments are given within a reasonable time, particularly in cases where time is of the essence, or that raise repetitive issues where the Court’s case law is clear and those that arise from systemic problems;
· the Court is given adequate financial and human resources, without adversely impacting the budgets of other Council of Europe human rights mechanisms and bodies;
· solutions to the problems faced by the Court, including the varied reasons for inadmissible applications, are devised on the basis of informed analysis, transparent evaluation of both the root of the problems and recent and future reforms.

The Committee of Ministers
The role of the Committee of Ministers in supervising states’ implementation of the Court’s judgments needs to be strengthened, not weakened. Its methods should be further developed and, when needed, the political pressure of the Committee must be brought to bear. The Department of Execution of Judgments, which assists with this task, urgently needs reinforcement. What is needed is political will. Political will by the 47 Council of Europe states to respect the European Convention on Human Rights, to ensure effective domestic remedies for violations of Convention rights, to
implement and ensure the implementation of the Court’s judgments and to adequately resource the European Court of Human Rights and the Department of Execution of Judgments. We note the recent Opinion by the Committee of Ministers’ Steering Committee for Human Rights, the reflections of the Court’s President and earlier proposals by the Group of Wise Persons and Lord Woolf.

We support proposals:
· to help potential applicants to the Court to be better informed about admissibility criteria;
· aimed at ensuring better implementation of the European Convention on Human Rights by states, such as improving domestic remedies or establishing effective ones where none exist; ensuring translation and dissemination of the Court’s case law and the screening of legislation for compliance with the Convention;
and involvement of both national Parliaments and human rights institutions in this endeavour;
· guaranteeing a high standard of expertise and independence of the Court’s judges, selected in inclusive, comprehensive and transparent processes;
· to address the case backlog effectively through short-term measures;
· to enhance resources and methods related to the Committee of Ministers supervision of implementation of judgments

We oppose proposals:
· that would undermine the accessibility of the Court such as charging applicants fees, or adding new, more restrictive admissibility criteria. Lack of funds should never be an obstacle for bringing an application before the Court;
· that would give the Court discretion to decide on which admissible cases it renders judgment;
· that would lessen the powers of the Committee of Ministers and the Department of Execution of Judgments to supervise the implementation of Court judgments.

Further reflection is needed to address concerns about proposals:
· to permit national courts to request Advisory Opinions from the European Court of Human Rights;
· to simplify the procedures for amending Convention provisions relating to the Court’s operating rules and procedures.

Friday 11 December 2009

Russia Urged to Implement Pilot Judgment

Last week, the Committee of Ministers of the Council of Europe urged the Russian Federation to adopt reforms to fully implement the pilot judgment in the case of Burdov (No. 2) v. Russia, on which I have reported earlier here. Although the Committee commends Russia for its constructive approach in addressing the issue of failed enforcement of domestic court judgments - the subject-matter of the Burdov case - it also criticizes Russia for failing to implement reforms before the deadline set by the Court (4 November 2009). For the full press release, click here. The interim resolution itself can be found here.

Wednesday 9 December 2009

Roma Marriage Judgment

This week, the Court gave an important judgment on the treatment of minorities by ECHR state parties. In the case of Munoz Diaz v. Spain (Appl.no. 49151/07) the Court held that Article 14 (prohibition of discrimination) in conjunction with Article 1 of Protocol No. 1 (protection of property) had been violated. In the 1970s she married according to Roma rites, but the marriage was not registered in the Civil Register. When her husband died in 2000, she applied for a survivor's pension, but was refused on the ground that she had not been married according to the law. She complained in Strasbourg that this was a form of discrimination of the Roma marriage. The Court took into account that the authorities had always recognised Munoz Díaz, her spouse, and their children as a family. The Court did not only take into acocunt her good faith in believing previosuly that the authorities recgonised her marriage, but it also emphasized that (paras. 56-57):

The importance of the beliefs that the applicant derives from belonging to the Roma community – a community which has its own values that are well established and deeply rooted in Spanish society. The Court observes, in the present case, that when the applicant got married in 1971 according to Roma rites and traditions, it was not possible in Spain, except by making a prior declaration of apostasy, to be married otherwise than in accordance with the canon-law rites of the Catholic Church. The Court takes the view that the applicant could not have been required, without infringing her right to religious freedom, to marry legally, that is to say under canon law, in 1971, when she expressed her consent to marry according to Roma rites.
And then follow some very telling considerations (paras. 59-60):

The Court takes the view that the force of the collective beliefs of a community that is well-defined culturally cannot be ignored. (my emphasis)

The Court observes in this connection that there is an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see ... in particular the Framework Convention for the Protection of National Minorities), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community
The reference to an emerging consensus is taken from the 2001 Chapman judgment, but the Court omits - and I think this is remarkable - the consideration which followed in the Chapman case (para. 94): "However, the Court is not persuaded that the consensus is sufficiently concrete for it to derive any guidance as to the conduct or standards which Contracting States consider desirable in any particular situation. The framework convention, for example, sets out general principles and goals but the signatory States were unable to agree on means of implementation." By contrast, in Munoz Diaz the Court appearantly takes the position that such consensus on minority rights as reflected in the Framework Convention is sufficiently clear to derive guidance from. It notes (para. 64) that "under the Framework Convention for the Protection of National Minorities, the States Parties to the Convention are required to take due account of the specific conditions of persons belonging to national minorities." This seems a stronger position than in Chapman in which the Court held that belonging to a minority (para. 96) "may have an incidence on the manner" on the way in which laws are implemented. Should we conclude that the Court is prepared to take more account of the culture of well-estabblished minorities? After all, it emphasizes in Munoz Díaz that the Roma have a culture that is "well established and deeply rooted in Spanish society." It may be too early too say, but Munoz-Díaz may become the first in a line of cases.

One judge, Myjer, dissented, and it is very worthwhile to read his dissent which does not go so much into the question of specific Roma culture, but more into questions of deviation from earlier case-law on marriage and into whether the Court's line of reasoning was necessary in the first place.

Tuesday 8 December 2009

Articles on ECHR

The Netherlands Institute of Human Rights (SIM), where I am based, compiles handy regular overviews of human rights articles. Let me highlight those which cover ECHR-related issues here:

* G. Sumner, 'We'll sometimes have Strasbourg: privileged status of community law before the European Court of Human Rights', Irish student law review, vol. 16(2008) pp. 127-170.

*E. Yilmaz, 'Domestic implementation of the judgments of the European Court of Human Rights at the national level: Turkey', Ankara bar review, vol. 1, no. 2(2008) pp. 85-91.

* P. Langford, 'Extradition and fundamental rights: the perspective of the European Court of Human Rights', International journal of human rights, vol. 13, no. 4 (2009) pp. 512-529.

* L. Hart, 'Individual adoption by non-heterosexuals and the order of family life in the European Court of Human Rights', Journal of law and society, vol. 36, no. 4 (2009), pp. 536-557.

* T. Lock, 'The ECJ and the ECtHR: the future relationship between the two European courts', Law and practice of international courts and tribunals, vol. 8, no. 3 (2009) pp. 375-398.

* N. Bamforth, 'Prohibited grounds of discrimination under EU law and the European Convention on Human Rights: problems of contrast and overlap, Cambridge yearbook of European legal studies, vol. 9 (2006/07) pp. 1-42.

* F. Tulkens, 'The European Convention on Human Rights and church-state relations: pluralism vs. pluralism', Cardozo law review, vol. 30, no. 6 (2008/09) pp. 2575-2592.

* K. Boyle, 'The European Experience: The European Convention on Human Rights, Victoria University of Wellington law review, vol. 40, no. 1 (2009) pp. 167-176.

Friday 4 December 2009

Freedom of Expression for Historians

Coming to terms with its past is a challenge for many societies. The role of a former Hungarian Prime minister, Pál Teleki, in anti-Jewish policies before and during WW II, is at the core of a judgment by the Court this week: Karsai v. Hungary (Appl.no. 5380/07). The applicant is a historian who participated in a public debate on Teleki's role, in relation to a cotnroversy on the possiblity of raising a statue for Teleki a few years ago. In a weekly newspaper, Karsai wrote on the ill-informed apology of Teleki by a number of people, which he labelled as 'careful Jew-bashing'. One of the persons he reffered to was an amateur historian, B.T., who subsequently sued him for defamation. Karsai was ordered to pay the legal costs of the ensuing proceedings and to arrange the publication of a rectification.

Taking his case to Strasbourg, Karsai claimed that this obligation violted his freedom of expression and that the sanction itself affected his credibility as a historian. The Court agreed, holding unanimously that Article 10 ECHR had been violated. Most of the Court's reasoning is very familiar: it considered the debate of utmost public interest (leading to a higher protection for Karsai's expressions). In addition, it held that B.T. had exposed himself to criticism by also openly participating in the public debate on the issue of Teleki. In this case Karsai's criticism had been indirect, but in the Court's view even harsh criticism would have been protected by Article 10 ECHR.

One element is of note for those who follow every step of the Court's freedom of expression case law. The Court has always distinguished between statements of fact - which are susceptible to proof - and to value-judgments which are not. In this case the domestic Courts had labelled Karsai's writings as factual statements, but the European Court disagreed. In order to do so it had to step away even further from what originally seemed to be intended as a clear typology, but which has become a bit blurred over the years. In this case, the Court introduced the term "value-laden" statements of fact, which seems to be somewhere in the grey zone between the two extremes. Does this mean that the Court has now truly chosen for a kind of gliding scale, in which the less factual a statement is, the less proof is needed? If so, then domestic courts might have a hard time in applying this approach consistently and convincingly in new cases coming before them.

Finally, having studied history myself, I was happy to read that the Court now explicitly held the following (para. 36): "the measure imposed on the applicant, namely, the duty to retract in a matter which affects his professional credibility as a historian, is capable of producing a chilling effect."

Tuesday 1 December 2009

My Own Article on Pilot Judgments

Dear readers, allow me to make a reference to one of my own upcoming articles. Later this month the main Greek Law Journal Nomiko Vima will publish a special issue on the 50th anniversary of European Court of Human Rights. It will include my article 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' which I have posted on SSRN. I humbly hope you will enjoy the read. This is the abstract:

The fiftieth anniversary of the European Court of Human Rights this year is an occasion for both celebration and apprehension. From a timid beginning the Court has grown into a full-time institution successfully dealing with thousands of cases each year. Its case law is generally perceived to be among the most developed and extensive of all international human rights institutions and most of its judgments are routinely implemented by the state parties to the European Convention on Human Rights (ECHR). However, for over a decade dark clouds have been gathering over Strasbourg. The number of applications has been rising so sharply – partly due to the accession of a large number of new state parties to the ECHR – that the very work and survival of the Court seems to be at risk. It is precisely because of these high numbers that the Court has started to deal creatively with large-scale violations of human rights by way of so-called pilot judgments. This article will assess this new phenomenon which holds the promise of being the most creative tool the Court has developed in its first fifty years of its existence. First, it will look at what pilot judgments are and in which cases the Court has applied the pilot methodology. Secondly, the main reasons for setting up the pilot judgment procedure will be considered. Finally, this article will analyse the challenges the pilot judgment procedure faces, such as its legal basis and the position of applicants in comparable cases.