Wednesday 31 March 2010

New ECHR Articles on SSRN

In the last few weeks a number of papers and articles relatign to the ECHR have been posten on the Social Science Research Network (SSRN), which makes them freely available. Here are a few of the notable ones:

* Anne Peters, 'The Applicability of the European Convention of Human Rights in Times of Complex Jurisdiction and the Principle of Fundamental Rights Tolerance (Die Anwendbarkeit der EMRK in Zeiten komplexer Hoheitsgewalt und das Prinzip der Grundrechtstoleranz)'
Growing transnational integration leads to an incremental exercise of governmental functions abroad and to increasing transferrals of governmental authority to international organisations. The question arises where, for whom, and under which conditions the European Convention of Human Rights (ECHR) is applicable. This issue involves first the question of the scope of the Convention, second the problem of the attribution of potentially illegal acts to a member state of the convention, and third question of the Strasbourg Human Rights Court’s jurisdiction. The starting point of reflections on scope, attribution and jurisdiction is the insight that the ECHR is a regional human rights instrument, and that some kind of coordination of multiple regimes is required in a polycentric and polyarchic world. Therefore the application of the ECHR outside the espace juridique of the Convention and in situations, in which international organisations are involved, should remain the exception. International legal coordination presupposes respect for foreign state sovereignty, but also respect for the autonomy of other autonomous political actors, such as the United Nations. On the other hand, a categorical non-application of the Convention in constellations of complex jurisdiction would run counter to the idea of effective human rights protection.

The paper deals with that tension. Part A analyses the ambiguous term “jurisdiction” as laid down in Article 1 ECHR. Part B systematises the relevant Strasbourg case law in comparison to decisions of other national and international adjudicatory bodies. The paper distinguishes “territorial” cases (part A I), and cases involving international organisations (part A II). The latter constellation is governed by various, partly contradictory principles. On the one hand, member states are not allowed to escape their obligations under the ECHR by transferring powers to other organisations. On the other hand, the Strasbourg Court exercises judicial self restraint vis-à-vis the EU. Finally, the Court has introduced the criterion of “ultimate control” in order to determine the attribution of an act to an international organisation, which leads to an easy negation of responsibility of the involved ECHR member states. Part C presents an alternative approach for the assessment of the applicability of the Convention and for attribution. Ultimately, the paper suggests a solution on the level of substantive law, not on the level of the Court’s jurisdiction. This solution should be based on a rebuttable presumption of equivalent protection (principle of fundamental rights tolerance). Moreover, the possibility of modifications of human rights obligations should be acknowledged, in order to avoid an undue burden of the ECHR member states.

Note: Downloadable document is in German.
* Erik Bjorge, 'The Status of the ECHR in Norway: Should Norwegian Courts Interpret the Convention Dynamically?'

This paper looks at the development in the jurisprudence of the Norwegian Supreme Court towards interpreting the ECHR dynamically.
And from the same author, 'A History of Sexuality in Europe: LGBT Rights and Dynamic Interpretation of the ECHR'
A stock-take and critique of the relationship between changing sexual discourse and dynamic interpretation of the ECHR.
* Elizabeth Palmer, ' Protecting Socio-Economic Rights Through the European Convention on Human Rights: Trends and Developments in the European Court of Human Rights'

This article is concerned with jurisprudential trends and developments in the protection of socio-economic rights through the interpretation of the European Convention on Human Rights (ECHR). It focuses on the potential to gain access to health care and welfare services, and the financial means to acquire them, through the development of positive obligations in ECHR rights. It demonstrates that, under Articles 3 and 8 ECHR, there has been progress towards a principled jurisprudence of positive obligations to provide for the basic human needs of vulnerable dependent individuals in a range of contexts, although the limits of state responsibility remain fluid and contested. Secondly, it argues that, in the light of differences between national policies and administrative procedures for the fair distribution of public resources, the incremental approach to the protection of socio-economic rights through the interpretation of Articles 6 and 14 ECHR remains problematic. Nevertheless, it is suggested that recent developments in Article 14 jurisprudence, particularly as demonstrated in the case of D.H. v. Czech Republic, signal a shift from a narrow formalistic approach to dealing with issues of discrimination to one that may be more capable of addressing systemic inequalities in the distribution of social provisions to vulnerable individuals and marginalised groups.

Tuesday 30 March 2010

Blood Transfusion HIV Judgment

The European Court has ordered Turkey to pay lifetime medical coverage to a teenager infected with HIV. The case, Oyal v. Turkey, was decided last week. It concerned a boy born in 1996, who was given blood transfusions for medical reasons right after birth. A few months later the parents were told that due to the transfusion, the baby had become infected with HIV which could develop into aids. Although criminal proceedings were started at the request of the parents, these were discontinued for the reason that no fault could be attributed directly to the doctors or the director general of the Turkish Red Cross (where the infected blood came from). The parents also brought civil and administrative proceedings. The outcome of those was that the Red Cross was responsible for the the supplying of contaminated blood and the Ministry of Health for negligence, amongst others because the medical staff had not performed a blood test since that was considered too costly. As a result the courts awarded the boy and his parents damages (one year of medical coverage) and the authorities promised to pay for medical expenses. The latter did not materialise, however. Even more astonishingly, the Ministry of Health withdrew a special green card for free health care from the applicants following the judgments. The family claimed they lived in debt and poverty because of all the medical expenses for their son.

The European Court ruled, in line with earlier case law on medical situations, that the life-threatening nature of the disease brought the case within the scope of the right to life (Article 2 ECHR). It held that although the national courts had taken a "sensitive and positive approach" in determining liability, the remedy offered had been insufficient. Being very specific, the Court held that the most appropriate remedy, in the circumstances of the case, would have been to award not only non-pecuniary damages, but also lifetime payment of healthcare and medical expenses for the boy. In addition, the Court noted that the administrative proceedings had been excessive, also considering the public health and safety reasons to prevent further similar errors. Unanimously, the Court found a violation of the right to life.

Apart from the order of lifetime medical expenses to be given to the boy, the Court also ordered Turkey to pay 300,000 euros for pecuniary damages and 78,000 for non-pecuniary damages. One judge, Sajó, dissented on the issue of just satisfaction. While clearly agreeing that the situation was heartbreaking and that this Turkish case can be compared to a Greek (sic!) tragedy, he argues that the parents should have exhausted domestic remedies on this issue more fully and should have presented more substantiation on the financial point. In the balance the Court has to strike between three issues ("it has to be human, it has to serve rights, and it has to operate as a court.") the Court gave a bit too much precedence to the first consideration, according to Sajó. One can, on technical grounds, agree with him. But to use another metaphor, the Court in this case issued a Salomonic judgment: maybe not perfect from a purely technical point of view, but infused (apologies for using that word here) with a deep humanity. A good case for discussions on ethics and the law and the balance between both.

Monday 29 March 2010

UK Parliamentary Report on Judgment Implementation

One of the bottlenecks in the whoel ECHR system is the rapid and effective implementation of the European Court's judgments by domestic juridictions. Indeed this has been labelled by many as one of the main areas in which improvement is needed. In that context it has been suggested that a more active role for national parliaments to monitor such implementation would be very usful. From that persepctive it is interesting to follow the discussions in the United Kingdom. The Joint Committee on Human Rights of the House of Lords and the House of Commons has issued a report this month, entitled 'Enhancing Parliament’s Role in Relation to Human Rights Judgments'. Apart from a clear analysis of the problems, the report also contains updates and recommendations on how the British government should deal with some recent high-profile judgments from Strasbourg, such as those on detention of terrorists and on DNA data retention. Well worth a read!

Friday 26 March 2010

More on EU Accession to the ECHR

Last week the European Parliament held a hearing on the future accession of the European Union to the European Convention of Human Rights. A number of experts addressed the meeting. The speech of Serhiy Holovaty of the Council of Europe's Parliamentary Assembly can be found here. A draft report, authored by the European Parliament's own rapporteur Ramón Jáuregui Atondo of the Committee on Constitutional Affairs, is entitled 'Draft Report on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms'. An opinion from his colleague from the Committee on Foreign Affairs, Cristian Dan Preda, is entitled 'Draf Opinion of the Committee on Foreign Affairs for the Committee on Constitutional Affairs on institutional aspects of the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms'. A parallel opinion was drafted by Kinga Gál of the Committee on Civil Liberties, Justice and Home Affairs.

These opinions and reports are the opening movements of a process which may take months or more probably even years, during which a lot of details will have to be negotiated, both within the EU and between the EU and the Council of Europe. Certainly to be continued... Let's hope this legal symphony will not become an Unvollendete!

Thanks to the ever-informed Andrew Dremczewski of the Council of Europe's Parliamentary Assembly for notifying me of this!

Thursday 25 March 2010

Article on Symbolic Legal Personhood

Yofi Tirosh of Tel Aviv University has just posted a paper online entitled 'A Name of One's Own: Gender and Symbolic Legal Personhood in the European Court of Human Rights'. This is the abstract:

Legal regulation of surnames provides a fascinating venue for examining how women negotiate their interests of autonomy and of stable personhood vis a vis a patriarchal naming structure. This is a study of 25 years of adjudication of surnames and personal status at the European Court of Human Rights. It explores the intricate ways in which legal norms governing surnames (and their judicial interpretation) sustain, shape, and reify social institutions such as gender, family, and citizenship. As a pan European court, the adjudication of the ECHR operates within the framework of human rights. The universal characteristics of human rights principles allow for an analysis that goes beyond the jurisdiction-specific doctrines of the different countries in Europe, relying on a more general protection of basic rights such as equality and privacy. All of the cases studied here originated in civil law countries. Unlike the common law, the civil law has a highly regulated approach to name-giving and name-changing, a fact that results in litigation in cases that would not reach courts in contemporary common law countries. The rulings in such cases provide a unique opportunity to learn about judicial assumptions regarding gender roles and their symbolic representation through names. This study is part of a larger project that explores the legal treatment of “external” personal markers such as clothes, hairstyle, names, and accent. Adding an important comparative dimension to the overarching project, this article further illustrates the difficulty of modern legal logic to be humble about its ability to classify and categories legal subjects in fixed rubrics of identity. Employing theoretical tools from feminist jurisprudence, semiotics, and textual analysis, this article lays out an alternative legal approach, which would perceive the subjects of law as multidimensional and complex persons, engaged in an ongoing project of finding ways of expressing themselves meaningfully.

Wednesday 17 March 2010

Book on ECHR and Northern Ireland

Oxford University Press has just published a book on the role of the European Convention on Human Rights in Northern Ireland: Brice Dickson's 'The European Convention on Human Rights and the Conflict in Northern Ireland'. This is the abstract:

This book provides the first comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. Brice Dickson studies the effectiveness of the Convention in protecting human rights in a society wracked by terrorism and deep political conflict, detailing the numerous applications lodged at Strasbourg relating to the conflict and considering how they were dealt with by the enforcement bodies. The book illustrates the limitations inherent in the Convention system but also demonstrates how the European Commission and Court of Human Rights gradually developed a more interventionist approach to the applications emanating from Northern Ireland. In turn this allowed the Convention to become a more secure guarantor of basic rights and freedoms during times of extreme civil unrest and political turmoil elsewhere in Europe.

The topics examined include the right to life, the right not to be ill-treated, the right to liberty, the right to a fair trial, the right to a private life, the right to freedom of belief, the right to freedom of expression, the right to freedom of assembly, and the right not to be discriminated against. The book argues that, while eventually the European Court did use the applications from Northern Ireland to establish important human rights principles, their development was slow and arduous and some gaps in protection still remain. The book illustrates the limits of the European Convention as a tool for protecting human rights in times of crisis.

Tuesday 16 March 2010

Roma Education Grand Chamber Judgment in Orsus

Today, the Grand Chamber of the Court delivered its judgment in the case of Oršuš and Others v. Croatia. It found that the separate education of many Roma children in several Croatian towns (in one school most Roma were put in separate classes, in another most were put in mixed classes), for the reason of language deficiencies, was not accompanied by sufficient safeguards and thus violated the prohibition of discrimination(Art.14 ECHR) taken together with the right to education (Art. 2 of Protocol 1).

The voting was extremely close, with nine out of seventeen judges voting for a violation on this point, thereby reversing an earlier unanimous chamber judgment of the Court in the same case. For more on the facts of the case and the reasoning of the original section of the Court dealing with the case, see my earlier post here. For my comments on another judgment, Sampanis v. Greece, in which the Court did find a violation and some remarks on the famous D.H. v. Czech Republic case, in which the Grand Chamber also reversed the judgment of an ordinary chamber, click here. Although most of these judgments end with the conclusion of a violation, the Court still seems very divided on the issue of the application and consequences of the notion of indirect discrimination (although the definition is agreed upon). In this case the dissenting judges emphasized among others the margin of appreciation for the state, the responsibilities of the parents, and the interests of the non-Roma children (whereas the majority points to the unwillingess of the non-Roma parents to have Roma pupils in their own childrens' classes, which might point to cultural patterns of discrimination). In general the dissenters indicated that the majority seemed more keen to rule on the general issue of the vulnerable position of Roma than on the specific facts of the case. The dissenters end with a barely-hidden warning on what the effect of such a judgment may be:

We would also like to stress that in a situation like the present one in which the Court is overruling a well-reasoned judgment by a Constitutional Court, as well as a unanimous judgment of one of its Chambers, by adopting a Grand Chamber judgment by a nine to eight vote, it should have presented more convincing arguments to justify its decision. In addition, it would have been useful if the Court had been willing to offer more practical guidance on how to develop and apply the notion of indirect discrimination. As it stands, without any clear indications on the matter, it could appear that the majority simply used its own discretion to replace a decision of the highest national court with its own. In so doing, the Court runs the risk of being told that it took upon itself the task of the national courts. Particularly so in a situation where the Constitutional Court's reasoning was based on the principles of the Convention and where its indications to the domestic authorities were clear. Thus, the present example well illustrates that when it comes to cases where the Court declares that a certain margin of appreciation is to be left to the States, it should be particularly careful not to overstep its role, especially when a large number of judges in the Court have expressed their support for the Constitutional Court's approach.

Be that as it may, it will certainly not be easy for the respondent State or any other State party to the Convention faced with schooling problems in relation to minority groups to follow the present judgment.
It is indeed difficult to foresee how many situations of partially separate schooling of minority groups for reasons of language (which is done in several European countries) should now be assessed under the Convention. Specifically, it is not yet clear how heavily the Court would weigh the special history of discrimination against the Roma as compared to other minorities in Europe (e.g. recent migrants or refugees). To be continued...

Monday 15 March 2010

Article on FMG, the Netherlands and the ECHR

My Utrecht colleague from the institute of criminal law, Renée Kool, has just published 'The Dutch approach to female genital mutilation in view of the ECHR. The time for change has come' in the latest issue of the Utrecht Law Review (Vol. 6, No. 1, 2010). This is the abstract:

Worldwide female genital mutilation (FGM) is acknowledged as a serious violation of human rights which needs to be actively combated. However, in Europe France has been the only state to have prosecuted cases of FGM: until 2007 37 cases were tried. As for the Netherlands, (assumingly) FGM is practised on a relatively small, but regular basis. Nevertheless, no cases have been prosecuted; moreover, there have few reports of (alleged) FGM to the Centre for Advising and Reporting on Child Abuse. For the past decade the Dutch Parliament has urged the Dutch government to develop a more robust policy towards FGM, including intervention by the criminal justice system. However, to date the Dutch government has opted for a policy focusing on prevention and medical/social assistance, including a preference for a (non-)statutory reporting code. Recommendations to introduce mandatory reporting, in order to enable the transfer of information needed to enable the criminal justice authorities to intervene, have been turned down. In doing so the Dutch government is neglecting the positive obligations embedded within the case law of the European Court of Human Rights (ECtHR), prescribing that states should offer adequate and effective protection against serious forms of ill-treatment (article 3 ECHR) and/or serious violations of physical integrity (article 8 ECHR), especially to vulnerable persons. Moreover, according to the ECtHR in cases of serious violations, intervention by the criminal justice system is indicated. Thus, retaining a policy which provides no guarantees for the transfer of information needed to provide for effective and adequate protection results in a potential violation of the ECHR by the Dutch government. There is an urgent need for a change of policy. Moreover, as a result of the consistent political pressure by Parliament, the Dutch government has taken a recent interest in the way in which the French handle FGM. However, as legal and cultural conditions differ, copying the French policy is not an option. Nevertheless, there is one step that the Dutch should take: the introduction of mandatory reporting of FGM.

Wednesday 10 March 2010

Article on Continuing Violations

My colleague Yves Haeck, together with A. Van Pachtenbeke of Ghent University, have authored an article on continuing violations and the ECHR. It has been published in the most recent issue of the European Human Rights Law Review (see also two posts below on that) and is entitled 'From De Becker to Varnava: the state of continuing situations in the Strasbourg case law'. I am honoured that the authors refer to and build on my earlier article 'A Lifeline in Time: Non-Retroactivity and Continuing Violations under the ECHR' which appeared in the nordic Journal of International Law. A link to that article can be found in the menu on the right and here (accessible for subscribers to IngentaConnect or through university libraries). This is the abstract of the article by Haeck and Van Pachtenbeke:

This article provides a comprehensive study of the case law of the European Court of Human Rights concerning continuing situations. It examines the evolutions in the Court's jurisprudence from the initial case of De Becker v Belgium (1958) until the recent judgment of the Grand Chamber in Varnava v Turkey (2009). The concept and the various types (continuing situations sensu strictu, composite acts and complex acts) of continuing situations are outlined, as well as the legal consequences (competence ratione temporis, admissibility, aggravating effect). Furthermore, the criterion of “sufficient relation” is deduced from the case law.
The article can be accessed, for subscribers, through Westlaw.

Monday 8 March 2010

Key Judgments of Last Week

Let me highlight here three key judgments and decisions the Court delivered last week. The first is the judgment of Kozak v. Poland on the rights of homosexuals. The Court held that a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy was in the context of the case not acceptable as a way of defending family values and found a violation of Article 14 (discrimination, in this case on the basis of sexual orientation) in conjunction with article 8 ECHR.

The second is the long-awaited judgment in Al-Saadoon and Mufdhi v. the United Kingdom, about two Iraqis taken prisoner by the British troops in Iraq and handed over - against the Court's orders -to the Iraqi authorities (see my earlier post here). The Court found a violation of Article 3, since it had exposed the two to the death penalty which they would face in Iraq. The judgment is an important one in the series of decisions and judgments on the death penalty (see para. 123) of the judgment, for which the groundwork was laid amongst others in Kaboulov v. Bulgaria of November last year. For an analysis on EJIL talk, click here.

Finally, the Grand Chamber issued an admissiblity decision in a group of Cypriot property cases: Demopoulos v. Turkey and seven other cases. The decision is the latest in the series of cases on contested Greek-Cypriot property in the northern, Turkish-controlled part of Cyprus. In the Pilot Judgment Procedure of Xenides-Arestis v. Turkey (2005-2006) a chamber of the Court had indicated that Turkey should enact changes in the existing compensation mechanism, which it subsequently did. In the decision of last week, the Grand Chamber declared a number of applications inadmissible, indicating that the existing remedies in Northern Cyprus should first be exhausted. In this way, the Grand Chamber seemed to take a practical and pragmatic approach. It emphasized that it does not force people to use these remedies - they may also await a broader political solution. But if they do, they cannot yet apply to Strasbourg. This could be seen as a new example of renewed Strasbourgian assertiveness in the light of the large quantity of applications it still faces.

Article on Interim Measures

The most recent issue of the European Human Rights Law Review (No. 1, 2010) features an article on interim measures by Catharina Harby. It is entitled 'The Changing Nature of Interim Measures before the European Court of Human Rights'. This is the abstract:

This article addresses the changing role of interim measures at the European Court of Human Rights. These measures enable the Court to deal with urgent situations where there is an imminent risk of irreparable damage to the applicant which a favourable judgment could not undo. The author analyses the historic use of interim measures, identifying that their use was restricted to potential violations of ECHR arts 2 and 3. The article traces new developments in the use of interim measures through an analysis of the jurisprudence of the Court and the litigation undertaken. In doing this, the author finds that the Court has extended its application of interim measures and proceeds to discuss some of its most important recent decisions and the challenges that have arisen from them. From this analysis it becomes clear the Court's growing use of interim measures, and their increasing recognised legally binding status, is symbolic of the dynamic evolution of Strasbourg case law and the practical use of the Convention as a living instrument.
The article can be accessed through Westlaw.

Wednesday 3 March 2010

New Academic ECHR Articles

Three new ECHR-related articles have been published in the past few months, two in English and one in German:

* L. Wildhaber, 'Ein Überdenken des Zustands und der Zukunft des EGMR',
Europäische Grundrechte Zeitschrift vol. 36 (2009), pp. 541-553, on the current predicament and future of the European Court.

* M. Oetheimer, 'Protecting Freedom of Expression: the Challenge of Hate Speech in the European Court of Human Rights Case Law', Cardozo Journal of International and Comparative Law vol. 17, No. 3 (2009) pp. 427-444.

And in the newest issue of the SIM-based Netherlands Quarterly of Human Rights:

* Philip Leach, Costas Paraskeva & Gordana Uzelac, 'Human Rights Fact-Finding. The European Court of Human Rights at a Crossroads', NQHR vol. 28, No. 1 (2010) pp. 41-77. This is the abstract:

This article seeks to examine the effectiveness of the fact-finding activities undertaken by the European Court of Human Rights (and the former Commission). It argues that while some fact-finding missions have revealed certain weaknesses in the past, the very conduct of such missions remains indispensable – in the interests both of litigants and the credibility of the Strasbourg system itself. Therefore, some greater thought needs to be given to practical ways and means to fully tap the Court’s fact-finding potential.