Wednesday 30 June 2010

Special Issue Greek Law Journal on ECHR

A special issue of the Greek Law Journal "Nomiko Vima" has just been published online with a range of articles celebrating last year's fifth decade of existence of the European Court of Human Rights. With over twenty contributions, mostly in English, some in French, from both Greek and European scholars and practitioners, this is a rich volume. It includes articles by a number of ECtHR judges, including Costa, Rozakis, Tulkens, and Spielmann. This is the full list of contributions:

1. D. Paxinos: Fifty years since the establishment of the ECtHR
2. The Editorial Board of Nomiko Vima: “Nomiko Vima” and its participation in the
celebration of 50 years of Strasbourg
3. J. P. Costa: La jurisprudence de la Cour Européenne des Droits de l' Homme et son
influence en France
4. C. L. Rozakis: The Particular Role of the Strasbourg Case-Law in the Development of Human Rights in Europe
5. A. Rantos: The Effect of the jurisprudence of the European Court of Human Rights on the jurisprudence of Greek Courts regarding the right to judicial protection
6. F. Tulkens: Migrants and their right to a family and private life under Article 8 of the European Convention on Human Rights
7. D. Spielmann: L’ extériorisation du vote judiciaire à la Cour Européenne des Droits de l'Homme
8. G. Nikolaou: Pronouncing on Human Rights
9. L. Kotsalis: DNA Bank, Safety and Human Rights
10. S. N. Ktistaki: The Prohibition of Discrimination in the granting of Social Benefits: Some thoughts arising from the recent jurisprudence of the European Court of Human Rights
11. A. Buyse: The Pilot Judgment Procedure at the European Court of Human Rights:
Possibilities and Challenges

12. L. Karelou: The influence of the jurisprudence of the European Court of Human Rights case law in Greece
13. M. Tsirli: Anachronistic Interpretations by Greek Courts and the European Court of Human Rights’ Corrective Role
14. P. G. Voyatzis: La privation de la propriété foncière, la Cour de Strasbourg et la réalité grecque: Variations de violations sur un même thème
15. Ch. D. Argyropoulos: European Convention on Human Rights: History and Adaptation.
The role of European Court of Human Rights
16. N. Frangakis: Systemic human rights violations in the jurisprudence of the European Court of Human Rights
17. V. Chirdaris: Criticizing Strasbourg, Lord Hoffmann, the Limits of Interpretation, the “Margin of Appreciation”, and the Problems Faced by the European Court of Human Rights
18. M. Tzifras: The European Court as a founding instrument for the implementation of
human rights
19. E. Salamoura: The right to be tried within a reasonable time and the restoration of the party’s “presumptive” prejudice
20. V. Chirdaris: The Greek part of the Strasbourg Court
21. P. G. Voyatzis: Dix arrêts importants dans la jurisprudence de la Cour Européenne des Droits de l’ Homme
22. S. D. Gryllis: La liberté de l’Europe
Many thanks to my friend Vassilis Chirdaris who did the editing of this special issue!

Tuesday 29 June 2010

First Decision on Lack of a Significant Disadvantage

On the very day of the entry into force of Protocol 14, 1 June 2010, the Court immediately seized the opportunity to start using a new key admissibility criterion introduced by that Protocol, as a press release of the Court highlights this week. In the case of Adrian Mihai Ionescu v. Romania, the Court used the criterion that the applicant had not suffered a "significant disadvantage". The applicant's claim concerned a claim of 90 euros against a bus company with which he had travelled between Bucharest and Madrid, for not providing the promised services. In national court proceedings, his case was assessed his case and his complaints were rejected. The national Court did not rule on his request that the defendant company produce certain items of evidence. Higher courts dismissed his appeals.

The Court used the case to flesh out the three main elemenets of the admissibility criterion found in Article 35, parageraph 3: the Court can declare applications inadmissible if 1) "the applicant has not suffered a significant disadvantage", (2) unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits" and (3) "provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal."

As to the first and most crucial element the Court considered both the amount of the alleged loss itself (90 euros) and its relation to the applicants own (financial) circumstances. Neither of these indicated that the applicant was at a significant disadvantage. Thus the test under this first aspect is a double one: first a relatively external assessment of extent of the disadvantage in itself (which in case of financial loss is admittedly more easy to qualify) and second the relation of that loss to the particular situation of the allged victim. For a very poor person, a loss of 90 euros might of course be significant.

Secondly, the Court looked at whether the two "exceptions to the exception" led to a different conclusion. As to the respect for human rights, the Court concluded that the relevant legal provisions in Romania had been repealed and the case was in that sense of historical interest only. As to the question of whether the case had been duly considered by a domestic court, the Court answered this positively. Thus, it rejected the complaint.

In making its arguments under the three tests, the Court not only used the explanatory report to Protocol 14, but also its own earlier case law. In the case of the 'significant disadvantage' this noticeably included a range of dissenting opinions in earlier cases!

It may be noted that the Court assessed the case in detail and declared part of the complaint ill-founded - the admissibility of evidence issue was declared manifestly ill-founded, whereas the complaint about the proceedings in the higher courts were deemed not to be manifestly ill-founded or an abuse of the right to petition, but rather inadmissible under the new admissibility criterion. This seems to send out the signal that the Court will not too easily apply this criterion to do away with an entire application, but will use it with a caution that respects the various aspects of a complaint. This may assuage the concerns and fears of many, but on the other hand may diminish the efficiency gains of the new criterion. Let's hope the press department of the Court will keep highlighting new developments in these normally difficult to trace non-admissibility decisions.

The case itself is available only in French thus far, but a press release in English can be found here. For a short fact sheet on the reforms of Protocol 14, click here.

Friday 25 June 2010

Article on ECHR and Abortion

Shannon Calt has just posted a comment on the upcoming ECHR decision in A, B, and C v. Ireland, a case on abortion. The article, entitled 'A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?' was published in the Lewis & Clark Law Review Vol. 14, No. 3 (2010) p. 1189. This is the abstract:

In Ireland, abortion is illegal. In 2005, three Irish women who had previously traveled to England for abortions brought suit in the European Court of Human Rights asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights. The case was heard before the Grand Chamber of the Court on 12/09/2009 and a decision is forthcoming some time in 2010, perhaps 2011.

The European Court of Human Rights has never determined whether the Convention protects a right to life of the unborn or conversely any right to an abortion.The case at hand squarely presents an opportunity for the Court to take a position.

This comment focuses on Irish and European Court of Human Rights abortion law and the impending decision in A., B. & C. v. Ireland. I conclude that - based upon the Court's own jurisprudence - the European Court of Human Rights is very likely to declare that Ireland's nearly absolute abortion ban and the resultant effects of Irish law did and continue to violate rights the Court has already deemed protected by the European Convention on Human Rights. The Court will likely embrace one of two possible holdings. First, the Court could find that Ireland's abortion ban causes undesirable secondary effects such as inadequate post-abortion care, that these effects implicate rights under the Convention, and that Ireland has an unfulfilled positive obligation to mitigate these effects. Alternatively, I suggest that the Court may hold that Ireland's abortion ban itself violates the personal and family rights of applicants A., B. and C. and women like them. Commentators have referred to this case as “Europe's Roe v. Wade,” and I believe this to be an accurate if oversimplified statement.
For a statement of the facts in the case, click here and for the webcast of the hearing, which took place in 2009, click here.

Thursday 24 June 2010

ECtHR Judgment: States not Obliged to Allow Homosexual Marriages

In a key judgment issued today, the European Court of Human Rights ruled on a complaint of a homosexual couple in Austria who were denied the right to marry. Although very recently (January 2010) Austria created the possibility to enter into a Registered Partnership for same-sex couples, marriage still is not possible. The applicants in this case, Schalk and Kopf, complained both under Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life). The Court found no violation of their human rights, although it was very divided on the issue of discrimination (four votes against three in holding that Austria did not discriminate).

On the right to marry of Article 12 ECHR, the Court observed this was the first case in which it exmained whether people of the same sex had the right to marry. In earlier cases, the Court had looked at the position of transsexuals, in which it had concluded that (para. 53) "Article 12 enshrined the traditional concept of marriage as being between a man and a woman. The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950." As to the litteral text of Article 12, the Court held that, looked at in isolation, the text "be interpreted so as not to exclude the marriage between two men or two women" (para. 55). But it then continued to add that "However, in contrast, all other substantive Articles of the Convention grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment. The choice of wording in Article 12 must thus be regarded as deliberate. Moreover, regard must be had to the historical context in which the Convention was adopted. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex."

The applicants asked the Court to interpret the text of Article 12 ECHR in the light of present-day conditions, an interpretation method which the Court has often used in the past to give a new or extended meaning to Convention provisions. This depends to a great extent on an evolving or developing consensus within Europe on a certain matter. In this case, however, the Court noted that there is no European consensus on same-sex marriage. To be precise, it stated that currently only six out of a total of 47 Convention states allow such marriages.

Interestingly, the Court also looked at the Charter of Fundamental Rights of the European Union (27 members) which includes in its Article 9 a right to marry without a reference to men or women, but with a reference to national law in accordance with which that right should be guaranteed. Thus, Article 9 of the Charter, leaves the decision to the states whether or not to recognise same-sex marriages (without oblgiing them to do so). On the basis of this, the European Court of Human Rights concluded on Article 12 that it "would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State." (para. 61). The door is thus left open a little bit, which basically affirms that those countries who do recognise and allow for same-sex marriages do so within the limits of human rights. This did not help the applicants of course. The Court went on to re-affirm that marriage has deep roots in societies and differs from one place to another. Considering this, it found it should not "rush to substitute its own judgment in the place of that of national authorities." To summarise, Article ECHR 12 does not oblige states to allow same-sex couples to marry.

The applicants may have foreseen this outcome and therefore also argued a violation under Articles 8 and 14 taken together. But that backdoor was also closed by the Court, since it held that the Convention's articles have to be interpreted in harmony with each other. The Court thus did not want to grant under these articles what it did not grant under Article 12. However, and here lies the importance of the present judgment, the Court did make a significant step by recognising that stable relationships of cohabiting same-sex couples fall within the notion of family life. This may seem self-evident to many, but for the Court it is a first. I cite the relevant paragraphs in full here:

93. The Court notes that since 2001, when the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples (see above, paragraphs 27-30). Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family” (see paragraph 26 above).
94. In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

The Court then went on to look at the case from a non-discrimination angle in which it reiterated that differences made by the state based on sexual orientation required a serious justification. It also held, innovatively in its jurisprudence, that "same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship." (para. 99).

Nevertheless, it went on to hold that since Austria had introduced a same-sex partnership it would not look at whether a total lack of legal ecognition of same-sex couples would violate the Convention, but only whether Austria had been obliged to offer any alternative way of legal recognition previous to the new partnership law. The Court held that Austria was not obliged to do so, with an explicit reference to the fact that there is "an emerging consensus towards legal recognition of same-sex couples" (para. 105) and that this was a rapidly developing tendency in the past ten years, but that currently no consensus existed yet (which it described as: there is no majority of states doing this yet). Consequently, states should enjoy a wide margin of appreciation. This margin also extended to the precise way in which alternatives (to marriage) of legal recognation fell within that margin. Thus the Court concluded that also on this count the Convention was not violated.
It must be noted, that on the issue of Articles 14 and 8, the Court came to its conclusion with a very small margin (four votes to three). The means that it might be wise for the applicants to ask the Court to have its Grand Chamber take a new look at the case on this very principled point. Indeed, as the three dissenters point out, there is a legal tension between saying that particular serious justifications are needed for such difference of treatment and then paradoxically not assessing whether such reasons where present, but rather going into the margin of appreciation question. Arguably, it is one or the other: the first approach suggests a rather small margin, the second implies that the justifications advanced by the state can be manyfold.

Thus this judgment seems to be a kind of Echternach procession: two steps forward, one step back (or even one step forward and two steps back, depending on ones perspective). It makes some important advances by recognising the at least factual and symbolic equality of same-sex and other couples, but it does not attach any far-reaching and clear legal consequences to that. Either a Grand Chamber judgment or a judgment in a different case which focuses on a situation in which any form of legal recognition in the country concerned was absent, should offer more clarity. The judgment seems to take a slightly too prudent approach for reasons of judcial politics (this outcome is the most acceptable to all states probably), but leaves us with a reasoning that is not entirely convincing nor an outcome which is very promising for same-sex couples.

It may be noticed that the government of the United Kingdom intervened on the side of Austria and that four NGOs (ICJ, FIDH, AIRE Centre and the European Region of the International Gay and Lesbian Association) intervened on the side of applicants.

New ECHR Academic Articles

Three new ECHR-related articles have recently been published. The first is authored by Nadezhda Purtova and has just been published in our own Netherlands Quarterly of Human Rights (Vol. 28, No. 2, 2010, pp. 179-198). It is entitled 'Private Law Solutions in European Data Protection: Relationship to Privacy, and Waiver of Data Protection Rights '. This is the abstract of the article:

This paper seeks to define how the legal categories of privacy and data protection correlate in the European legal system, and what the effects such a correlation has on the mode of data protection. Since the norms of the EC data protection law did not provide a conclusive answer, this paper turned to the ECHR for guidance. As a roadmap of analysis this paper picked the dichotomy between privacy and data protection based on the negative rights and positive obligations explained by De Hert and Gutwirth. The analysis of Art. 8 ECHR case-law led to the conclusion that the European Court of Human Rights does not limit the application of Art. 8 ECHR to private sphere only, and the provision on privacy protection has been applied as giving individuals positive rights (for instance, to refute false information about oneself) and imposing on the states affirmative obligations to create and ensure functioning of an effective system of data protection. The conclusion has been reached that European legal order treats data protection as a privacy interest.

Besides, it has been shown that legal recognition of such a close relationship is much more than just a matter of conviction on the philosophical meaning of privacy. Data protection benefits significantly from enjoying protection of a fundamental right status. Removal of data protection from the scope of privacy rights is not necessary and not desirable. First, development of the ECHR case-law expands privacy protection beyond negative right against state intervention to include affirmative obligations of a state to create a data protection system. Second, treating data protection as anything less than a fundamental right under Art. 8 ECHR will allow its waiver and thereby open the door for a dramatic change in approach to data protection.
The second is an article in the same issue of the Netherlands Quarterly, written by Andrew Drzemczewski, entitled 'The Parliamentary Assembly's Involvement in the Supervision of the Judgments of the Strasbourg Court'. This is the abstract:

Even though the Committee of Ministers of the Council of Europe has primary responsibility to supervise the execution of the judgments of the European Court of Human Rrights, by virtue of article 46(2) of the European Convention on Human Rights, the Parliamentary Assembly has increasingly contributed to the process of implementation of the Strasbourg Court's judgments. Composed of national parliamentarians, the Assembly can put pressure on states parties to the Convention to help ensure - through appropriate national parliamentary oversight procedures and mechanisms - rapid and complete implementation of Strasbourg Court judgments. This important Parliamentary dimension should be taken into account when the 2010 Interlaken declaration and action plan are implemented.
The third is an article in the European Journal of Crime, Criminal Law and Criminal Justice (2010, p. 225-236) by Tijs Kooijmans, entitled 'The Burden of Proof in Confiscation Cases: A Comparison between the Netherlands and the United Kingdom in the Light of the European Convention of Human Rights'. This is the abstract:

The Dutch Minister of Justice recently brought a legislative proposal before the Lower House in which a new broadening of the possibilities for deprivation of advantages was proposed. A comparison of Dutch law with the law of the United Kingdom is useful for a proper assessment of the value of the Dutch proposal. For that reason, the possibilities offered by the confiscation order in the United Kingdom are outlined in this paper. Next, it will be examined how, according to the case law of the ECtHR, the imposition of that confiscation order relates to the presumption of innocence as contained in Article 6 ECHR. Afterwards, the case law of the ECtHR will be represented by a Dutch case that shows some similarity to the imposition of the confiscation order in the United Kingdom. Lastly, several conclusions will follow.
Enjoy reading!

Wednesday 23 June 2010

New German and Maltese Judges Elected

Yesterday the Parliamentary Assembly of the Council of Europe elected two new judges to the Court. With respect to Germany, the new judge will be Angelika Nussberger, currently law professor at the University of Cologne. The new Maltese judge will be Vincent Anthony De Gaetano, currently Chief Justice and President of the Constitutional Court, of the Court of Appeal and of the Court of Criminal Appeal. For the result of the vote relating to the German judge, click here. For the one relating to the Malteese judge click here. For the CVs, click here. The new Maltese judge will take up office within three months allowing the oldest judge on the Court, Giovanni Bonello, to finally retire. The new German judge will start working as of 1 January 2011. Both have been elected for a term of office of nine years.

Friday 18 June 2010

Rendition Case to be Heard in Strasbourg

The case of the former terrorism suspect Khaled El-Masri is due to be considered in Strasbourg by the European Court of Human Rights, according to the Open Society Institute who is supporting his case. El-Masri was arrested by Macedonia in 2003, held incommunicado for over three weeks, and then handed over to the United States, under a practice known since a few years as extraordinary rendition, a very debated issue obviously. He was allegedly flown to Afghanistan, held and ill-treated there and eventually released in the countryside in Albania(!). After pursuing legal venues in vain within the American judicial system, his lawyers are now turning to the European Court, having lodged an application against Macedonia last year. For the press release of the Open Society Institute, click here. For more facts on the case and the application itself, click here.

See also the reporting on the Guardian Legal Network, of which this blog is also a partner, here.

Thanks to Darian Pavli of the Open Society Blog!

Thursday 17 June 2010

Procedure for Electing Judges at the Court

The secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly has issued a document on the 'Procedure for Electing Judges to the European Court of Human Rights'. It is a handy summary of all the rules and developments on the issue of the last few years. The belated entry into force of Protocol 14 on the 1st of June extended the terms of office of the current judges and provides that newly elected judges will have a term of office of nine years. Still, several judges will retire from the Court after many years of acclaimed service. A timetable in the document indicates the foreseen elections for 2010 and 2011. These will include replacements for the highly valued President of the Court, Costa, in 2011 and of judges Jaeger of Germany and Rozakis of Greece later this year amongst others. A great loss of experience, for which one may hope highly qualified replacements will come. Last but not least, the end of the predicament of Maltese judge Giovanni Bonello (born in 1936) is in sight. He was due to retire in 2004 already but for lack of a replacement he is still going strong and continues to write his extremely well-phrased separate opinions, often imbued with a fine sense of irony - I can strongly recommend them to everyone!

Wednesday 16 June 2010

Judgment on Non-Religious Education in Poland

Human rights in classrooms - it seems to be a topic of increasing popularity (or concern) in Strasbourg these days. Yesterday, the Court issued its judgment in the case of Grzelak v. Poland. The case concerned a Polish boy who refused to attend reilgious education in the various primary (and later secondary) schools he attended for reasons of personal conviction, with the full approval of his parents who were agnostics. Since, for a lack of other pupils in a similar situation no alternative courses such as ethics were offered, he had to spend such hours alone, apart from the other pupils. According to his parents that made him the subject of social ridicule and exclusion. In spite of various demands by the parents, no inter-school ethics were organised, since the number of interested pupils was too small. On his school reports, the place was the mark for religion/ethics was instead filled up by a straight line.

The first complaint related to the fact that the marking with a line, although seemingly neutral in effect revealed the convictions of the applicant against his will. For in practice, most schools did not offer ethics courses but only religious ones. A straight line under the heading 'religion/ethics' thus would reveal more than one might want. The Court considered this part of the complaint under Articles 9 (freedom of religion) and 14 (prohibition of discrimination) taken together. First the Court re-emphasized that Articel 9 also protected non-believers. In para. 87 it held:

It necessarily follows that there will be an interference with the negative aspect of this provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.
It continued by noting, in para. 93, on religious information:

The Court reiterates that religious beliefs do not constitute information that can be used to distinguish an individual citizen in his relations with the State. Not only are they a matter of individual conscience, they may also, like other information, change over a person's lifetime (see, mutatis mutandis, Sofianopoulos and Others v. Greece (dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002-X; and Sinan Işık v. Turkey, no. 21924/05, § 42, 2 February 2010). Although the above cases concerned identity cards, documents of arguably greater significance in a person's life than school reports for primary and secondary education, the Court nonetheless finds that similar considerations apply to the present case.
Especially in a country like Poland, with a great majority of the people adhering to one specific religion, the situation of the boy took on a "particular significance" (para. 95). In this case, in the Court's view, the very core of the boy's right not to manifest his convictions was infringed.

The second complaint related to the refusal to offer alternative courses in ethics to the boy. On that matter, the Court concluded under Article 2 of Protocol 1 (right to education) that Poland had remained within its margin of appreciation. After all, both religious and ethics education were optional and not compulsory, subject to the requirement that a minimum number of students is interested. The practice in Poland of a minimum seven pupils for such classes was in that sense not deemed unreasonable. No violation on that count therefore.

The Court was at pains to distinguish the case from its own decision in Saniewski v. Poland of 2001, in which it declared a very similar complaint on the straight line in school reports "manifestly ill-founded". The only dissenting judge in the Grzelak case, David Thór Björgvinsson, quite convincingly points out that the two cases are not that different. It seems rather that the Court, nine years later simply takes a different position. It would have been clearer if it would have openly argued so.

Monday 14 June 2010

Article on Right to Individual Petition

Astrid Kjeldgaard-Pedersen of the University of Aarhus has just posted 'The Evolution of the Right of Individuals to Seise the European Court of Human Rights' (forthcoming in the Journal of the History of International Law) on SSRN. This is the abstract:

In at least two ways the year 2009 was a milestone for the European Court of Human Rights (ECtHR, the Court). On the bright side, the Court could celebrate its 50th anniversary and its continuous role as principal promoter of human rights in the 47 Member States of the Council of Europe (CoE, the Council). However, 2009 was also the year in which the number of pending cases before the Court passed the disturbing 100 000 benchmark.

Paradoxically, the main reason for both the Court’s success and its current crisis is the right of petition of individuals. The present article contains a detailed inquiry into the coming into existence of this central feature of the control machinery of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, the Convention) that was labeled a breakthrough in the field of human rights as well as in general international law.

Parts I-IV of the article provide a chronological account of the drafting processes leading up to the adoption of the ECHR in 1950, and Protocol 9 in 1990. In analysis of reports and meeting minutes from a number of organs set up in the realm of the Council, the study concentrates on two main questions: Why did the original Convention end up excluding individuals from the proceedings of the ECtHR? And what changed in the time between 1950 and 1990 to facilitate the individual’s right to seise the Court independently?

As parts I-IV reveal, the development of the ECHR control machinery provides an interesting example of the interplay – or rather lack of same – between the practical decision-making among the parties to a convention and international legal theory. Part V reflects on the extent to which the theoretical discussion on the position of individuals in international law influenced the evolution of the right of individuals to seise the ECtHR.

Friday 11 June 2010

Paper on Effective Application of ECHR and EC Law in Cyprus

Nikolas Kyriakou of the European University Institute in Florence has just posted on SSRN an article on the national implementation of European norms. The paper is entitled 'National Judges and Supranational Laws on the Effective Application of the EC Law and the ECHR: The Case of Cyprus'. It takes issue with the domestic effect of EU and ECHR law in Cyprus and analyses the changes that have occured in the national legal order for their reception.

Monday 7 June 2010

Court Information Note on Pilot Judgments

It may have been online for some time already, but I only just saw it and would like to bring it to your attention: the Court's registry has drafted a short information note on the pilot judgment procedure. For more information on the pilot judgment procedure, see als the recent book 'An Analysis of 'Pilot Judgments' of the European Court of Human Rights and Their Impact at National Level' and my own article in the Greek Law Journal, entitled 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges'.

Friday 4 June 2010

Religious Oath in Court Proceedings Judgment

In Greece, witnesses and suspects in criminal proceedings are required to indicate epxlicitly if they do not want to take an oath on the Bible. This way they are forced to reveal their religious( or non-religouis) convictions. Four different people complained about this in Strasbourg and yesterday won their case, in which they were represented by the Greek Helsinki Monitor. In Dimitras and others v. Greece the Court decided that such an obligation violated the freedom of religion under Article 9 ECHR. This is an excerpt from the Court's press release on the relevant part of the judgment:

The Court reiterated that freedom of thought, conscience and religion, which went hand in hand with pluralism, was one of the foundations of a “democratic society” and that in its religious dimension that freedom was an essential part of any believer’s identity, as well as being a precious asset for atheists, agnostics, sceptics and the unconcerned. It had already held that freedom to manifest one’s religious beliefs included an individual’s right not to reveal his faith or his religious beliefs and not to be obliged to act or refrain from acting in such a way that it was possible to conclude that he did or did not have such beliefs – and all the more so when aptitude to exercise certain functions was at stake.

The applicants had been considered as Orthodox Christians as a matter of course, and had been obliged, sometimes in hearings, to point out that they did not subscribe to that faith and, in some cases, to specify that they were atheists or Jews in order to have the standard wording of the minutes amended. In some court records they were expressly described as “atheists” or “of the Jewish faith”.

This interference with their freedom of religion had been based on Articles 218 and 220 of the Code of Criminal Procedure and pursued the legitimate aim of the proper administration of justice. Article 218 regulated the taking of the oath in court, on the Bible. It was thus presumed in the Code of Criminal Procedure that all witnesses were Orthodox and willing to take the oath, as reflected in the standard wording of the records of court proceedings. Indeed, it is only exceptions to the rule that Article 220 provides for, allowing those who were not Orthodox Christians to take the oath in conformity with another religion or to make a solemn declaration if they had no religion or their religion did not permit oath taking.

The wording of Article 220 actually required people to give details of their religious beliefs if they did not want the presumption contained in Article 218 to apply to them. Some of the applicants had had to convince the court officials concerned that they did not subscribe to any religion, failing which they would have had to take a religious oath. The incompatibility of the impugned legal provisions with Article 9 of the Convention was even more evident in Article 217 of the Code of Criminal Procedure, which stipulated that in any event all witnesses were required, amongst other information, to state their religion before testifying in criminal proceedings. The Court further noted that, unlike the Code of Criminal Procedure, the Code of Civil Procedure provided for witnesses, if they so wished and without any other formality, to be able to choose between taking a religious oath and making a solemn declaration.

The Court found that requiring the applicants to reveal their religious convictions in order to be allowed to make a solemn declaration had interfered with their freedom of religion, and that the interference was neither justified nor proportionate to the aim pursued. There had therefore been a violation of Article 9.
The problem was to be found firstly in the fact that the Code of Criminal Procedure itself started with the assumption that witnesses are Orthodox Christians and secondly that it preconditions exceptions to that rule on more information on the other religion (or lack thereof) that the witness adheres to, in order to decide on the kind of oath they are allowed to take. The practice is a clear example in which due to tradition a certain religion is given the main stage. It seems to me that this could be easily changed without prejudice to any religion into a more neutral provision, just as the one already existing in Greek civil law (and the ones existing in many other countries).

The judgment is available in French only, but the enitre English press release can be found here.

Thursday 3 June 2010

Interventions in Crucifix Case

A few days ago, I reported this, but it seems that the information in the Maltese newspaper was not correct:

As various newspapers report this week, at least ten ECHR state parties will intervene as third parties in the extremely debated case of Lautsi v. Italy. After the Court concluded in its judgment in November 2009 that the obligatory crucifixes in Italian public schools violated the ECHR (see my earlier post on the case here), Italy asked for a referral of the case to the Grand Chamber. A panel of the Court indeed decided to grant this and the case will be heard in a public hearing in Strasbourg on 30 June. The countries involved, mostly with Catholic or Orthodox Christian majorities, are Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, San Marino, Romania and the Russian Federation. All states, and in addition 12 NGOs, intervene in support of Italy. According to the Maltese newspaper The Malta Independent, no country or NGO has asked for leave to intervene arguing in support of Lautsi's position. The very high number of intervening parties is unique in the Court's history, as far as I am aware. Whatever the outcome of the Grand chamber judgment, this will be keenly awaited and strongly scrutinised.
As the comments to this post by the Helsinki Monitor show (thanks for that!), the number of countries might indeed be lower and the interventions by NGOs are not only in support of the Italian position, but several are also in support of the position of the applicant. Let's await the hearing at the end of this month to see which arguments the Court will scrutinise in its questioning of the parties.

Wednesday 2 June 2010

Paper on EU Accession to ECHR and Antitrust Law

Charlotte Leskinen of the Instituto de Empresa has just published a paper on SSRN on an economic law aspect of the EU's accession to the European Convention on Human Rights. Her working paper is entitled 'An Evaluation of the Rights of Defense During Antitrust Inspections In the Light of the Case Law of the ECTHR: Would the Accession of the European Union to the ECHR Bring About a Significant Change?'. For a related post on this blog, see here. This is the abstract of the paper:

The Lisbon Treaty provides that the European Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This paper aims to establish whether the accession of the European Union to the ECHR would bring about a significant change regarding the protection of rights of defense that undertakings can invoke during inspections conducted in the course of investigations of alleged violations of the EU antitrust rules. The paper will examine the relevance of the case law of the European Court of Human Rights in this context by comparing the protection of the rights of defense granted under European Union law with the case law of the ECtHR. It will then draw some conclusions on the differences between the protection granted under European Union law and the ECHR and will outline the implications of the accession for the level of the protection of fundamental rights.

Tuesday 1 June 2010

Protocol 14 Enters into Force

Today, a bit over six years after it was opened for ratifications, Protocol 14 finally entered into force. The Protocol reforms the supervisory machinery of the European Convention, rendering judicial decision-making more efficient. In addition, it introduces a new admissibility criterion: cases can be declared inadmissible if the applicant did not suffer a significant disadvantage. Finally, it opens up the possibility of EU accession to the ECHR.

The new, consolidated text of the European Convention on Human Rights and Fundamental Freedoms as amended by the Protocol can be found here. Reason for a small, but belated, celebration! Thorbjørn Jagland, the Council of Europe's Secretary General , and Jean-Paul Costa, President of the Court stated in a joint press release that "the entry into force of Protocol No. 14 represents a crucial step in improving the effectiveness of the Court and the protection of human rights in Europe. The Convention establishes the foundations of a common legal space across Europe. Protocol 14 will permit the Court to concentrate more on cases that raise important human rights issues, so it can play its role most effectively." That is only the first step of course as the follow-up - the Interlaken process - is just in its infancy.

Gäfgen Grand Chamber Judgment: Threatening with Torture and Fair Trial Rights

The Grand Chamber of the European Court of Human Rights just issued its keenly awaited judgment in the case of Gäfgen v. Germany today. The case centres on the fact that the applicant was threatened with torture when being questioned by the police. For the facts of the case and my analysis of the earlier Chamber judgment in 2008, see here. The Grand Chamber disagreed with the Chamber on a key point and decided that Mr Gäfgen, who had kidnapped and killed a young boy, could still be considered a victim, even though the German authorities had recognised violations of his human rights already at the national level. Specifically, it held that the punishments of the police officers involved had been relatively modest and did not function as sufficient deterrent for future violations. Thus, the Grand Chamber clearly once more wanted to send a strong signal on the absoluteness of the ban on torture (and even on the threat of torture). From this it followed that Article 3 ECHR had been violated. National authorities thus have to deal with such aberrations of their own personnel with utmost seriousness, even if the victim itself may not arouse a single grain of sympathy.

The Grand Chamber followed the ordinary chamber by holding that there had been no violation of Gäfgen's fair trial rights under Article 6 ECHR. Under both Articles (3 and 6) the Grand Chamber was divided (in both cases eleven votes to six). The various separate opinions are worhtwhile reading for some insights on the Article 3 discussions within the Court.

This is an excerpt from the press release:

Decision of the Court

Article 3

Treatment contrary to Article 3

It had been established by the German courts that a police officer, acting on the instructions of the Deputy Chief of Frankfurt Police, had threatened the applicant with being subjected to intolerable pain in order to make him disclose J.’s whereabouts. The Court considered that these immediate threats of deliberate and imminent ill-treatment had to have caused the applicant considerable fear and mental suffering. It observed that, as established by the domestic courts, the deputy police chief had ordered his subordinates on several occasions to use force against the applicant, his order could therefore not be regarded as a spontaneous act, but had been calculated in a deliberate manner.

The Court accepted that the police officers had been motivated by the attempt to save a child’s life. However, the prohibition on ill-treatment applied irrespective of the conduct of the victim or the motivation of the authorities; it allowed no exception, not even where the life of an individual was at risk. The Court considered that in the present case the immediate threats against the applicant for the purpose of extracting information from him were sufficiently serious to be qualified as inhuman treatment falling within the scope of Article 3. Having regard to its case-law and to the views taken by other international human rights monitoring bodies, it found, however, that the method of interrogation to which the applicant had been subjected had not reached the level of cruelty to attain the threshold of torture.

The applicant’s victim status

The Court was satisfied that the domestic courts, both in the criminal proceedings against the applicant and against the police officers, had acknowledged expressly and in an unequivocal manner that the applicant’s interrogation had violated Article 3.

It observed, however, that the police officers, having been found guilty of coercion and incitement to coercion, respectively, had been sentenced only to very modest and suspended fines. The domestic courts had taken into consideration a number of mitigating circumstances, in particular the fact that the officers had aimed to save J.’s life. While the Court accepted that the present case was not comparable to cases concerning arbitrary acts of brutality by State agents, it nevertheless considered that the punishment of the police officers did not have the necessary deterrent effect in order to prevent further Convention violations of this kind. Moreover, the fact that one of the police officers had subsequently been appointed chief of a police agency raised serious doubts as to whether the authorities’ reaction reflected adequately the seriousness involved in a breach of Article 3.

As regards compensation to remedy the Convention violation, the Court noted that the applicant’s request for legal aid to bring liability proceedings, following a remittal, had been pending for more than three years and that no decision had yet been taken on the merits of his compensation claim. The domestic courts’ failure to decide on the merits of the claim raised serious doubts as to the effectiveness of the official liability proceedings.

In the light of these findings, the Court considered that the German authorities did not afford the applicant sufficient redress for his treatment in breach of Article 3.

The Court concluded, by eleven votes to six, that the applicant could still claim to be the victim of a violation of Article 3 and that Germany had violated Article 3.

Article 6

As the Court had established in its case-law, the use of evidence obtained by methods in breach of Article 3 raised serious issues regarding the fairness of criminal proceedings. It therefore had to determine whether the proceedings against the applicant as a whole had been unfair because such evidence had been used.

The Court found that the effective protection of individuals from the use of investigation methods in breach of Article 3 may require, as a rule, the exclusion from use at trial of real evidence obtained as a result of a breach of that Article. It considered that this protection and a criminal trial’s fairness were only at stake however if the evidence obtained in breach of Article 3 had an impact on the defendant’s conviction or sentence.

In the present case, it was the applicant’s new confession at the trial – after having been informed that all his earlier statements could not be used as evidence against him – which formed the basis for his conviction and his sentence. The evidence in dispute had therefore not been necessary to prove him guilty or determine his sentence.

As regards the question whether the breach of Article 3 in the investigation proceedings had a bearing on the applicant’s confession during the trial, the Court observed that he had stressed in his statements at the trial that he was confessing freely out of remorse and in order to take responsibility for his offence, despite the threats uttered against him by the police. The Court therefore had no reason to assume that the applicant would not have confessed if the courts had decided at the outset to exclude the disputed evidence.

In the light of these considerations, the Court found that, in the particular circumstances of the case, the failure of the domestic courts to exclude the impugned evidence, secured following a statement extracted by means of inhuman treatment, had not had a bearing on the applicant’s conviction and sentence. As the applicant’s defence rights had been respected, his trial as a whole had to be considered to have been fair.

The Court concluded, by eleven votes to six, that there had been no violation of Article 6.

Article 41 (just satisfaction)

The applicant did not claim any award for pecuniary or non-pecuniary damage, but stressed that the objective of his application was to obtain a retrial. As there had been no violation of Article 6, the Court considered that there was no basis for the applicant to request a retrial or the reopening of the case before the domestic courts.

Three Property Rights Judgments

Last week, the European Court of Human Rights issued a number of important judgments which all evolve around the protection of property. In Sarica and Dilaver v. Turkey (available only in French), the Court held that the widespread practice in Turkey of de facto expropriation by the state represented a structural problem and was contrary to the Convention. This practice enabled the Turkish authorities to occupy property without any formal declaration of transferring ownership. They could also change the prospective use of the property irreversibly. The practice forced people to start Court proceedings in order to have such occupation of land quashed or in order to receive compensation. Under article 46 ECHR (binding force and execution of judgments) the Court indicated that Turkey should also take general measures in order to make the process of expropriation less unforeseeable and arbitrary and to secure compensation. Turkey should also actively discourage de facto expropriation by measures of deterrence and by holding the people responsible to account. Reforms in this area are thus now called for in Turkey.

The other two cases relate to a post-conflict context. In Saghinadze and others v. Georgia, the Court ruled on the eviction of an internally displaced person (IDP). The applicant, a Georgian who fled the Georgian province of Abkhazia during the armed conflict in the early 1990s, was given the use of a cottage in Georgia's capital Tbilisi by the Ministry of the Interior, by which he was employed. With his family he build up a new life there. Following the 'Rose Revolution' in Georgia in 2003, the applicant led a number of investigations into criminal cases and also submitted information to the authorities on abuse of power within the state apparatus. Apparently, he stepped on someone's toes a bit too hard, since he and his family were evicted from the cottage in 2004 by agents of the special forces. The Court found that both articles 8 (right to respect for the home) and Article 1 of Protocol 1 (protection of posessions) had been violated. The eviction had been unlawful under Georgian law and contrary specifically to the protection given to IDPs. In a particular example of very intense review, the European Court held that the Georgian Supreme Court had contradicted its on case-law in this matter. In para. 16 the Court noted on this that "where such manifestly conflicting rulings stem from the same jurisdiction, and no reasonable explanation is given for the divergence, such rulings smack of arbitrariness." The rule of law thus clearly also applies to the reasoning (or lack thereof) of national judgments themselves. One may note, in passing, that the Court lauds Georgia's inclusion in its laws of protection for IDPs in line with UN standards, but condemns its lack of application in the practice of this case.

Finally, the case of Dokic v. Bosnia and Herzegovina concerns the case of a lecturer at a military school who tried in vain to repossess his flat in Sarajevo which he had left at the start of the Bosnian war. He currently lives in Serbia and has both the Bosnian and Serb nationalities. Serbia intervened as a third party in the case. Interestingly, the Court considered it unnecessary to establish whether Dokic had been forced to flee Sarajevo, but noted that he was neither a refugee nor an IDP. This was irrelevant for the reasoning of the Court however, which in essence did not deal with the case as a war-related property issue (although that was part of the factual context), but rather decided within its general and established case-law on property rights. It held that Dokic was in essence treated differently than others on the basis of his ethnicity (Serb), even if the applicable law seemed neutral. In addition, the reasoning of the state that the housing was needed to accommodate other people in need was not supported by evidence (military flats were allocated to war veterans, but this was done irrespective of their housing situation or income). In addition, the applicant had not received a comparable occupancy right in Serbia as he had held in Bosnia - there was thus no equivalent alternative (as Bosnian law required). Finally, the compensation offered was too low in the view of the Court. Thus it concluded that Article 1 of Protocol 1 (P1-1) had been violated.

The European Court more strictly scrutinised the state's arguments than the former Bosnian Human Rights Commission had done. In deciding on the same case, the Commission in 2006 found no violation of P1-1. See the judgment (in Bosnian) here.

Finally, for those interested in housing rights (like myself) it is notable that the Court held that the case did not disclose an interference with the right to respect for the home (Art. 8 ECHR), since Dokic had shown no intention of returning to his former flat. This is an application of principles established in Demopoulos v. Turkey earlier this year and is an opposite situation (but same application) of older case law which stressed the need for continuing links with the dwelling at issue (e.g. Gillow v. United Kingdom).

See also the informative post(s) on this case here, by experts who have worked on housing restituion in practice in Bosnia.