
Thursday, 28 October 2010
Scottish Practice Contrary to Salduz Requirements

Wednesday, 27 October 2010
Winter School on ECHR and Migrants

Friday, 22 October 2010
Case Note on Demopoulos Decision

Thursday, 21 October 2010
UN Sanctions Case Goes to Grand Chamber

The applicant, Youssef Moustafa Nada, is an Italian national who was born in 1931 and lives in Campione D’Italia, an Italian enclave of 1.6 km in the Swiss Canton of Tessin.In many respects this promises to be an interesting case. For one because judicial institutions of the European Union have dealt with similar issues in the past few years, but this is a complaint directed against a non-EU country. Secondly, the ordinary chamber had already allowed France and the United Kingdom to intervene as third parties - one may presume that as permanent Security Council members they have a high interest at stake here. Finally, one could ask whether the Court will really go into the merits of the case or simply declare the case inadmissible as it has done before when state parties act to implement UN Security Council resolutions (the Behrami and Saramati decisions).
On 15 October 1999 the United Nations Security Council adopted Resolution 1267 (1999) providing for sanctions against the Taliban and setting up a Committee responsible for their implementation. On 19 December 2000, by the adoption of Resolution 1333 (2000), the sanctions regime was extended to include Osama bin Laden and al-Qaeda. In its resolutions, the Security Council called upon the Committee to maintain a list of individuals and entities associated with bin Laden and al-Qaeda.
Under those resolutions, on 2 October 2000 the Swiss Federal Council adopted an order laying down measures against individuals and entities associated with Osama bin Laden, al-Qaeda or the Taliban (the “anti-Taliban order”). The order provided for the freezing of assets and financial resources of those concerned, and prohibited the provision to them of funds or financial resources. It further restricted their entry into or transit through Switzerland.
On 9 November 2001 Mr Nada and a number of organisations associated with him were placed on the list of the United Nations Committee. On 30 November 2001 those names were added by the Swiss authorities to the list of people concerned by the anti-Taliban order.
On 22 September 2002 Mr Nada requested the deletion from the list of his name and those of the organisations associated with him, mainly because the Swiss investigation against him had been discontinued.
However, his request and subsequent administrative appeals were rejected. The Federal Council referred his case to the Federal Court, considering that the restrictions on Mr Nada’s property rights had, under the European Convention on Human Rights, to be assessed by an independent and impartial tribunal. On 14 November 2007 the Federal Court dismissed Mr Nada’s appeal. It found that Switzerland had acted in accordance with its international obligations. It nevertheless requested the Swiss authorities to ascertain whether it was possible, having regard to their international obligations, to waive the measure barring Mr Nada from entering the country. As he lived in a small Italian enclave in Switzerland he found himself virtually under house arrest. Mr Nada has stated that following that judgment he has asked the Swiss authorities several times to let him enter or pass through Switzerland, but without success.
Relying on Article 5 §§ 1 and 4 (right to liberty and security), Mr Nada complains that he was deprived of his liberty by the Swiss authorities and had no effective procedure through which to challenge the restrictions on his freedom of movement. He further takes the view that the measures at issue were contrary to Article 8 (right to respect for private and family life). Lastly, he alleges that there has been a violation of Article 13 (right to an effective remedy), in that there was no remedy available in Switzerland by which he could have complained of a breach of Articles 5 and 8.
See the full press release here. To be continued!
Tuesday, 19 October 2010
60 Years ECHR Website

Friday, 15 October 2010
Non-Discrimination, the Military, and Parental Leave

The facts of the case gave the Court a chance to issue a judgment on parental leave and the military. It approached the case from the perspective of the right to family life (Article 8 ECHR) in conjunction with the prohibition of discrimination (Article 14). The Court held that Article 8 does not impose any positive obligations on state parties to create parental leave possibilities or related allowances, but that if they did, they should do so in line with the probihition of discrimination. The denial of parental leave to the applicant was based on a combination of sex and military status. especially on the first grounds states always have to put forward very weight reasons to justify differneces in treatment. Most conspicuously, the Court went into the reasoning of russia's Constitutional Court on the roles of parents. The European Court held (para. 48):
The Court is not convinced by the Constitutional Court’s argument that, as far as parental leave is concerned, the different treatment of male and female military personnel is justified by the special social role of mothers in the upbringing of children (see paragraph 19 above). It observes that in contrast to maternity leave and associated allowances, which are primarily intended to enable the mother to recover from the fatigue of childbirth and to breastfeed her baby if she so wishes, parental leave and the parental leave allowances relate to the subsequent period and are intended to enable the parent to stay at home to look after the infant personally. Whilst being aware of the differences which may exist between mother and father in their relationship with the child, the Court considers that, as far as the role of taking care of the child during this period is concerned, both parents are “similarly placed” (see Petrovic, cited above, § 36).The Court pointed to a growing consensus in Europe on equal rights relating to parental leave, to the effect that Russia could no longer rely on a lack of common European standard. Then the Court noted (para. 49): " Nor can the reference to the traditional perception of women as primary child-carers provide sufficient justification for the exclusion of the father from the entitlement to take parental leave if he so wishes." Old prejudices can thus no longer sustain current practices in this matter. In Russia, the difference at stake relates only to military service personnel (for civilians equal rights exist). Even if in general human rights of the military can be restricted to a larger extent than in other situations, when they relate to Article 8 the margin for states becomes narrower. In this case, Russia had failed to show that allowing parental leave for men would truly endanger the effectiveness of the military (no statistics or other proof) and thus the reasoning of Russia, according to the Court, was based on "a pure assumption" (para. 57). In conclusion, the Court found a violation of Article 14 taken together with Article 8.
It is notable that although this was the first time such a case (parental leave in the military) was decided by the Court, it did emphasize that it concerned a wider problem than the individual case at hand. After all, the discrimination flowed from legislation. Thus the Court recommended under Article 46 ECHR (states have to abide by final judgments of the Court) that Russia amend the relevant law in line with the principles developed in the judgment.
The judgment was arrived at with a vote of six against one: only the Russian judge dissented. Judge Kovler was of the opinion that the reasoning of Russia's national judiciary, which placed more emphasis on the effectivenss of the military (which necessitated placing restrictions on servicemen), was more convincing than the Court's own argumentation. In addition, he concluded that this was an isolated case and that Russia would not need to take general measures. It is always a pity if only the national judge dissents as that might negatively affect the authority of the Court's judgment in the country concerned.
Pride and prejudice - Jane Austen could write another novel on it!
Monday, 11 October 2010
An Expert Advisory Panel for Selection of Judges

to set up rapidly a panel along the lines proposed by the Wise Persons and the Secretary General. Such a panel, which should be composed of senior figures from a relevant background, would intervene before a list was submitted to the PACE by the contracting party so as not to interfere with the PACE’s Convention responsibilities in this area. Moreover, its role would be advisory; in other words it would make recommendations to the nominating State including, as necessary, proposals to modify the list. Such a Panel could be set up without amending the Convention by a decision of the Committee of Ministers.Costa also refers to the importance of this in relation to the accession of the EU to the ECHR:
One of the critical issues in this context will be the future relationship between the Court of Justice of the European Union and the Strasbourg Court. For that relationship to function it must be based on mutual respect. Since the entry into force of the Lisbon Treaty, appointments to the EU courts are subject to the opinion of an independent panel (Article 255 of the Treaty on the Functioning of the European Union). It is true that the procedure under the Convention is not strictly comparable to the EU appointment process in view of the involvement of the Parliamentary Assembly of the Council of Europe and the additional guarantee which that provides.After controversies regarding the lists submitted in respect of Malta, Ukraine, Italy, and Greece in the recent past, amongst others, this would seem to be a welcome development to ensure a high quality of judges. I will keep you posted on possible further developments on the proposed panel.
See also this information document of the Committee on Legal Affairs and Human Rights.
Thursday, 7 October 2010
Working Paper on EU Accession to ECHR

Chief among the many issues, which an accession of the EU to the ECHR, will raise, is the question of the appropriate respondent before the European Court of Human Rights in cases involving EU law. EU law is typically implemented by the Member States. Against whom should an individual address their individual complaint in a case where they argue that a violation of the ECHR can be found in EU law: the EU or the Member State? This paper discusses various options and proposals made in the wake of the negotiations, which started in July 2010. Both actions and omissions will be dealt with. It is argued that a solution must not only protect the autonomy of EU law but at the same time offer an effective remedy for the individual.
Wednesday, 6 October 2010
New Estonian and Greek Judges

In respect of Greece a very well-known human rights lawyer was elected: Mr Linos-Alexander Sicilianos (1960), again with more votes than his opponents combined. His nine-year term of office will commence on 18 May 2011. He has a few times litigated cases in Strasbourg, is an academic as well, and among many other functions has been a member of the UN Committee on the Elimination of Racial Discrimination.
Congratulations to both!
Tuesday, 5 October 2010
PACE Rapporteur Calls for National Application of ECHR Case-Law

See the press release here, the speech itself here, and the background document here.
Monday, 4 October 2010
Case Law Made More Accessible

The second is the launch of a number of electronic factsheets on the Court's jurisprudence. Currently, there are almost twenty of them, relating to e.g. child protection, terrorism, the environment and the very topical Roma and travellers' rights. As an example, consider this factsheet on the ECHR and the European Union, a very concise and informative overview. The sheets include both decided and pending cases and the Court has announced it will update them regularly. One may hope that this will indeed happen regularly; another earlier tool of the Court, the sheets on key case-law issues have, after a promising beginning a few years ago, not been extended or updated since 2007 (as far as I could see) ... One may assume this is a question of both time and funding, but it would be important that the new initiatives will not suffer from a similar fate. For the moment, they are a great improvement for increased access to the Court's case-law.
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