Monday 29 November 2010

New issues IAEHR Journal and HRLR

Two human rights journals have just released their newest issues. Please find an overview here of the articles that relate to the ECHR. The latest issue of the Human Rights Law Review (vol. 10 , no. 4 , 2010) includes:

* Thérèse Murphy and Gearóid Ó Cuinn, 'Works in Progress: New Technologies and the European Court of Human Rights':

A field—new technologies and human rights or, more broadly, law and technology—is in the process of being framed. Should the European Court of Human Rights be seen as part of that process? To find out, we searched the Court's case law using HUDOC, a database on the Council of Europe website which contains both judgments and admissibility decisions. We entered 155 keywords, all in English, and in this article we report and analyse what we found. The overall conclusion is twofold: first, it is too early to attempt a complete characterisation of the Court's position on new technologies; and second, the Court is however ‘one to watch’.
The just published latest edition of the Inter-American and European Human Rights Journal (vol. 2, no. 1-2, 2009), a bilingual English/Spanish-language journal, includes:

* Dirk Voorhoof, 'Freedom of Expression under the European Human Rights System'
* Giovanni Bonello, 'Evidentiary Rules of the ECHR in Proceedings Relating to Articles 2, 3 and 14 - A Critique'
* Egbert Myjer and Peter Kempees, 'Notes on Reparations under the European Human Rights System'
* Laurence Burgorgue-Larsen, 'Interim Measures in the European Convention System of Protection of Human Rights'

Friday 26 November 2010

Interpretative Authority of ECtHR Judgments

A strong plea for the interpretative authority of Europea Court judgments. That is what PACE rapporteur Christos Pourgourides delivered last month at a conference in Skopje. He convincingly argued that one of the key ways to prevent repetitive applications to the Court and to prevent human violations in general is for state parties to take the res interpretata of the Court's judgments more seriously, even if it concerns judgments relating to other countries. He mentions two situations to illustrate his point:

The Court held as early as in 1979, in Marckx v. Belgium, that children born out of wedlock must not be discriminated. French law was similarly discriminatory. But the necessary changes were made only after France herself was condemned by the Court in the case of Mazurek v. France, in 2000! It was obvious, already back in 1979, what the Court’s position would be. Twenty years lost for the victims of such discrimination, and many years of unnecessary litigation before the Court in Strasbourg.

The second example concerns my own country: whilst the Court had already decided in 1981, in Dudgeon v. the United Kingdom, that homosexual acts between consenting adults must not be criminalised, Cyprus waited until the Modinos v. Cyprus judgment in 1993 to finally decriminalise such acts – and even then, I recall it well,
without much enthusiasm.
The speech is available online here. The speech is followed by a very informative compilation of background materials on the interpretative authority of the judgments of the European Court of Human Rights, with key extracts from relevant cases, but also a very elaborate overview of examples of national laws and domestic court cases which illustrate acceptance of res interpretata of the Strasbourg Court. Highly recommended!

Thursday 25 November 2010

Report on Implementing Regional Human Rights Decisions

The NGO Open Society Justice Initiative has just published a new report online, entitled 'From Judgment to Justice. Implementing International and Regional Human Rights Decisions'. It focuses on challenges of implementation in respect of four human rights systems: the Strasbourg system, the Inter-American and African ones and the UN Human Rights Committee. For the ECHR system the report concludes that although compliance is relatively high - especially in relation to the payment of compensation - the more general measures which are often required to implement a judgment are much more problematic. Many of the recommendations focus on a more effective approach in tackling systemic problems. The report calls for greater synergies between Council of Europe institutions, a further refinement and clarification of the pilot judgment procedure and a more robust monitoring on the national level both by parliaments and by national human rights institutions. This is the abstract:

Despite unquestionable achievements over the past 25 years, the Inter-American, European, African, and UN systems all face tremendous obstacles in translating their verdicts into change on the ground. In many cases, landmark decisions have not yet yielded meaningful reform.

From Judgment to Justice, a report launched this week by the Open Society Justice Initiative, reviews the implementation of judgments across the world's four human rights systems. Working from empirical data as well as interviews conducted with court personnel, human rights advocates, and academics, authors David C. Baluarte and Christian M. De Vos provide a comprehensive review of the dynamics involved in putting international commitments into practice. The report provides recommendations tailored to each system, while also pulling together common points of concern in its final chapter.

Wednesday 24 November 2010

Voting Rights for Detainees: Reform Ordered

A blanket ban on voting rights for detainees in the United Kingdom, in place since 1870, might change into a more nuanced system of assessing which prisoners get the right to vote. Yesterday, in the pilot judgment of Greens and M.T. v. the UK, the European Court of Human Rights decided that the United Kingdom had violated the rigth to free elections (Article 3 of Protocol 1 to the European Convention). The case was legally simple, in the sense that the Grand Chamber had ruled over five years ago in the case of Hirst v the United Kingdom (No.2) that the blanket ban violated the Convention.

The interesting aspect of the Greens and M.T. case is the consequences the Court attaches to this, after five years in which British governments dragged their feet on this, in spite of calls from the Committee of Ministers of the Council of Europe and more importantly of their obligations under the ECHR. The Court noted that it was a cause for regret and concern that no action had been undertaken by the British government to reform the legislation in question. It stressed that the violation in this case was a direct result of the British failure to comply with the Hirst judgment. Moreover, this lack of compliance does not only touch upon the rights of detainees, but also threatens the effectiveness of the Strasbourg system, not in the least because around 2,500 similar applications have been sent to the European Court. Each election in the UK will give rise to a new flood of such applications. Thus the Court in this pilot judgment decided to put more pressure on the United Kingdom. It set out a time table under Article 46 of the Convention (on the binding force of Strasbourg judgments): the UK needs "to introduce legislative proposals" to amend the existing laws within six months after the judgments becomes final (which in effect means nine months of time in total). For the subsequent steps, the Court refers to the Committee of Ministers: "with a view to the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst according to any time-scale determined by the Committee of Ministers." Simultaneously, the Court "freezes" the assessment of all pending or newly incoming cases from the UK on this issue, also indicating that relief should come from a change in law, not from awards distributed by the Court. For the applicants in this case, declaratory relief is sufficient (Greens and M.T. got no compensation for any non-pecuniary damages). Although the two applicants here still got compensation for costs made in the proceedings, even that will not be likely, according to the Court. A clear signal that applicants should no longer try their luck in Strasbourg on this matter. If the UK changes its laws in compliance with Hirst, the Court will strike all such similar cases off its list.

It is very important to note that this and previous Court judgments do not entail that all prisoners should be given voting rights under all circumstances (and thus contrary to what some in the British press mistakenly report. See e.g. here). Rather the Court's case-law points out that a blanket ban - which is general, authomatic and indiscriminate - goes too far and that a more individualised assessment of when prisoners can vote is necessary. In the Hirst case the Court indicated that a number of factors could be relevant in that respect, such as the length of the sentence, the nature or gravity of the offence, and the individual circumstances of the detained person. In the later case of Frodl v Austria, the Court specified that such an individualised decision needed to be taken by a judge and that (para. 32 of Frodl) "there must be a link between the offence committed and issues relating to elections and democratic institutions."

Although Prime Minister Cameron has been reported to get nauseous fom the thought of giving prisoners the right to vote, there seems to be a growing understanding in British ruling circles that there is no way to legally circumvent the Strasborug dictum - see here. See also the commentary on the UK Human Rights Blog.

Tuesday 23 November 2010

Russian Constitutional Court President Very Critical of Strasbourg Court

The president of Russia's Constitutional Court, Valery Zorkin, uttered very critical remarks at a forum in Saint Petersburg last Saturday. According to various press agencies (Itar Tass and Reuters) and newspapers (Kommersant) he indicated that Russia could withdraw from the jurisdiction of the European Court of Human Rights. This follows statements by the Constitutional Court that it wants to introduce mechanisms to protect national sovereignty which would permit national authorities not to execute ECtHR judgments if they would be contrary to the Russian Court's judgments. All of this takes place after criticism in Russia of the Strasbourg Court's findings of human rights violations in a whole series of cases in the last few years and more specifically the recent judgment in Markin, a case in which the European Court found that Russia violated the ECHR by discriminating against male soldiers asking for parental leave, a case originally decided by Mr Zorkin's Constitutional Court. In addition, the judgment in the politically very sensitive Yukos / Khodorkovski / Lebedev case is forthcoming.

One may add, that anonymous sources within the Kremlin immediately played down Zorkin's remarks and qualified it as a "backwards step".

Thursday 18 November 2010

PACE Report Points Out Biggest ECHR Implementation Culprits

Yesterday, the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe (PACE) adopted its newest (7th) report on the implementation of the judgments of the European Court of Human Rights, drafted by Mr Christos Pourgourides. The report fits in with the increasingly active role of PACE in the last few years to supplement the work of the Committee of Ministers, which formally supervises the implementation of the Court's judgments on a case-by-case basis. The Assembly rather focuses on large-scale issues and thus highlights in this report nine countries which show "extremely worrying delays in implementation": Bulgaria, Greece, Italy, Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine. One may note, by the way, that these delays are all the more problematic since this list of countries includes all the countries from which most applications come to Strasbourg. A number of outher countries are also in the 'danger zone' and deserve attention: Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Georgia and Serbia.

Specifically, the following grave problems endangering the rule of law are discussed in the report:

* excessive length of judicial proceedings leading to ineffective protection of a wide range of substantial rights (endemic notably in Italy);
* chronic non-enforcement of domestic judicial decisions (widespread, in particular, in the Russian Federation and Ukraine);
* deaths and ill-treatment by law enforcement officials, and a lack of effective investigations thereof (particularly apparent in the Russian Federation and Moldova) and;
* unlawful detention and excessive length of detention on remand (in Moldova, Poland, the Russian Federation, and Ukraine).
Less problematic, but also mentioned are Portugal and the United Kingdom, where the rapporteur sees some slow but positive developments. The very detailed report is an invaluable resource to see how implementation fares in some of the more problematic state parties to the ECHR.

Wednesday 17 November 2010

The Court's New Priority Policy

The high tide of cases reaching Strasbourg is a well-known and worrying fact to Strasbourg watchers and others. One of the creative ways to deal with the current backlog of far over 100,000 cases is to prioritise applications instead of dealing with them in the chronological order in which they reach the Court. The first step was taken in June 2009 when the Court amended its Rules of Court. Ever since, Rule 41 (on the order of dealing with cases) reads as follows:

In determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it. The Chamber, or its President, may, however, derogate from these criteria so as to give priority to a particular application.
Even before that time it had been possible to prioritise cases (one may think of Pretty v. the United Kingdom in 2002, a case in which the applicant was terminally ill). After the amendment of the Rules of Court, the Court started to develop criteria and these have now been made publcily avaialable on the Court's website in a document aptly entitled 'The Court's Priority Policy'. It indicates clearly the main rationale for the priorities given: some very serious human rights problems remained on the stack of cases for too long. By dealing with those with priority, the Court hopes not only to help the applicants concerned, but also - by addressing those particular human rights problems - to prevent more applications of the same kind. These are the seven categories of priority which the Court has established:

I. Urgent applications (in particular risk to life or health of the applicant, other circumstances linked to the personal or family situation of the applicant, particularly where the well-being of a child is at issue, application of Rule 39 of the Rules of Court).

II. Applications raising questions capable of having an impact on the effectiveness of the Convention system (in particular a structural or endemic situation that the
Court has not yet examined, pilot-judgment procedure) or applications raising an
important question of general interest (in particular a serious question capable of
having major implications for domestic legal systems or for the European system), inter-State cases.

III. Applications which on their face raise as main complaints issues under Articles 2, 3, 4 or 5 § 1 of the Convention (“core rights”), irrespective of whether they are
repetitive, and which have given rise to direct threats to the physical integrity and
dignity of human beings.

IV. Potentially well-founded applications based on other Articles.

V. Applications raising issues already dealt with in a pilot/leading judgment
(“repetitive cases”).

VI. Applications identified as giving rise to a problem of admissibility.

VII. Applications which are manifestly inadmissible.
Chambers of the Court or the Court's President can still deviate from this priority list if need be, but these will be the guiding criteria for the years to come. The Court has internally set up a working group to monitor how this works out in practice.

The Court has already indicated that one of the side-effects of this new policy could be that the output of the Court decreases; dedicating more time to serious and complicated cases means less time for easier, more quickly disposable cases. Already now, judges in the Court spend the overwhelming amount of their working time on the more serious cases (the circa 5% that is both admissible and non-repetitive). In practice this could mean that a great number of cases without priority (those in the lowest categories) will remain on the docket virtually eternally, unless the root causes of the Court's problems are addressed. One may indeed note that two rights which take up a very large chunk of the applications and judgments currently (the right to a fair trial and the right to property) do not figure in the priority list. Such issues will be dealt with on a more systemic level through pilot judgments but less and less so through series of individual decisions and judgments - ironic as this may be especially for people complaining of the right to a fair trial within a reasonable time.

The right to individual application and the Court's assessment of all cases was an achievement which, amongst others through pressure of NGOs, was saved in the Interlaken reform process. But the prioritising policy shows that the constitutionalisation process is in a way also still ongoing. It is not a formal pick-and-choose policy as some national constitutional courts apply, but de facto it might turn into that, since non-prioritised cases may remain on the stack "to be dealt with later" indefinitely. While this is certainly unsatisfactory in many regards, I think that given the circumstances the Court implicitly but rightly places the responsibility for that on the state parties. It will itself focus on the cases that really concern the worst human rights violations and those issues that are systemic or touch upon many European countries. This is a wise choice: it enables the Court to make a difference where it matters most and where it impacts most and in that way may help to retain and rebuild it's public image, which in recent years has come under attack of both states and public opinion in several countries. Really crucial cases will not be allowed to get lost in the mailroom or the corridors and archive rooms of the Court. A process to be followed closely.

Tuesday 16 November 2010

Protecting the Right of Individual Application

In recent years there have been various interferences with individuals trying to bring their case to the European Court of Human Rights. Applicants in detention have been barred from contacting a lawyer, pressure has been put on applicants, or proceedings have even been started on the national level against applicants' legal representatives in order to hamper the application to Strasbourg. Apparently, this development has become so worrysome, that the Committee of Ministers of the Council of Europe felt the need to once again stress the duty of state parties to the ECHR to respect and protect the individual right of application in a resolution adopted last week. The Ministers note "with concern that there have been isolated, but nevertheless alarming, failures to respect and protect the right of individual application (such as obstructing the applicant’s communication with the Court, refusing to allow the applicant to contact his lawyer, bringing pressure to bear on witnesses or bringing inappropriate proceedings against the applicant’s representatives), as found in recent years by the Court." The Ministers call upon the states (read: themselves) to refrain from such pressure on applicants, to to protect them, to comply with the interim measures of the Court in this respect, and to investigate all cases of such alleged interferences. The Committee of Ministers indicates that it will examine with urgency such cases in which the Court found a violation of the right to individual application in this respect. Increased vigilance, in other words.

Monday 15 November 2010

ECHR and EU in UK and Ireland

Cian C. Murphy of King's College in London has published a paper on SSRN entitled 'Ireland & the UK in the European Union and European Convention on Human Rights: A Tale of Two Island Legal Systems?'. It is part of this book: The National Judicial Treatment of the ECHR and EU Laws: A Comparative Perspective by Giuseppe Martinico and Oreste Pollicino (eds.) (Europa Law Publishing, 2010). This is the abstract:

This paper critically examines the operation of European Union (EU) law and the European Convention on Human Rights (ECHR) in Ireland and the UK. Ireland has a colourful history in both the EU and ECHR. Since its accession in 1973, Ireland has provided the EU with both legal and constitutional challenges. Furthermore, while it only transposed the Convention into domestic law in 2003, Ireland offered the European Court of Human Rights (ECtHR) its first case, one of its few interstate cases, and the opportunity to offer its most recent thoughts on the relationship between EU law and the ECHR. The UK’s relationship with the EU has been fraught with acrimony. Similarly, despite the leading role played by Britain in the Council of Europe, the eventual implementation of the ECHR in British law in 1998 has been portrayed as European interference with the UK legal system. Nonetheless, the peculiar nature of the UK legal system and its interaction with both EU and ECHR law makes for an interesting case study. This report critically compares Irish and British implementation of European law. Section 2 examines the legal effects of EU membership in the two jurisdictions. Section 3 considers Irish and UK membership of the ECHR and implementation of the Convention in the domestic law of the two states. In section 4, judicial application of European law in the two jurisdictions is critically compared. Section 5 draws the various strands together to conclude that Irish and British implementation of both forms of European law remains idiosyncratic. While European law has undoubtedly affected the two legal systems, its influence continues to be filtered through the unique constitutional arrangements of the two states.

Thursday 11 November 2010

New Articles on ECHR

Two new articles on the European Convention on Human Rights have been published. First on the right to life in the European Journal of International Law (Vol. 21-3, 2010), Juliet Chevalier-Watts has written 'Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?'. This is the abtract:

Articles 1 and 2 of the European Convention on Human Rights, when read together, require a proper and adequate official investigation into deaths resulting from the actions of state agents, both from the use of lethal force, and also in situations arising from the negligence of agents that leads to a death. The article considers the extent of the obligation to carry out an effective investigation since its explicit recognition by the European Court of Human Rights in the case of McCann and Others v. United Kingdom. The article assesses the jurisprudence of the duty to investigate in order to determine whether the obligation is now placing too onerous a burden on member states in order to comply with their duties under the Convention, or whether the duty does indeed secure the right to life, as is intended. To assess the original proposition, the article considers the jurisprudence of the duty to investigate in relation to the following applications: early forays into the application of the duty; fatalities arising from non-lethal force; the influential quartet of cases arising out of the Northern Ireland troubles; recent judgments concerning cases arising out of the conflict in Chechnya; and finally through to a critical review of the effectiveness of the European Court.
Secondly, in the Nordic Journal of International Law (Vol. 79-4, 2010) Ian Bryan and Peter Langford have written 'Impediments to the Expulsion of Non-Nationals: Substance and Coherence in Procedural Protection under the European Convention on Human Rights.' This is the abstract:

This article offers a critical assessment of the interpretative positions adopted by the European Court of Human Rights as to the applicability of Convention rights and freedoms to the deportation of “aliens” resident in the territory of a Contracting State. The article considers inconsistencies in the Court's jurisprudence and argues that these inconsistencies are a result of the characterisation of deportation proceedings as administrative events. The authors also explore the nature of Contracting States' deportation procedures and examine key features of the procedural guarantees afforded to non-nationals under the Convention and its Protocols. In addition, the authors consider the extent to which Convention notions of due process and natural justice are deemed germane to deportation proceedings. The article contends that disparities in the procedural protections accorded to nationals when compared with resident non-nationals conflict with the purpose of the European Convention on Human Rights are an avertable consequence of the primacy of State sovereignty.

Tuesday 9 November 2010

Court Reform in a Fairy Tale

At the occasion of the retirement from the European Court of Human Rights of the German judge Renate Jaeger, a small and original analysis of the Court's current problems and predicaments has been written by Egbert Myjer and Peter Kempees, in the form of a fairy tale. It's entitled 'Jack and the Solemn Promise. A Cautionary Tale.' It has been published with Wolf Legal Publishers (ISBN 978-90-5850-574-3) and starts like this:

Once upon a time, not so very long ago (although it may seem ages ago to young people who have grown up with mobile telephones, pizza delivery services, music downloads and social networking web sites), there was an inhuman war. Of course, all wars are inhuman, but this one was really horrible, worse than anything anyone could remember.
An enjoyable read!

Monday 1 November 2010

Two New Articles on ECHR

In the week in which the European Convention on Human Rights will turn 60, two recent articles address two very different aspects. The first goes into the fundamental question to what extent the Court can be said to be democratically legitimate. It was writted by Andreas Føllesdal in the Nordic Journal of International Law (Vol. 27-2, 2009) and is entitled 'Why the European Court on Human Rights Might Be Democratically Legitimate: A Modest Defense'. This is the abstract:

According to critics in some of the Nordic countries the bodies that monitor and adjudicate international human rights courts are undermining their own legitimacy by adhering to undemocratic practices. The strongest normative case against the judicial review that such bodies perform could be directed at the European Court on Human Rights (ECtHR), which monitors many wellfunctioning democracies. Section 1 lists normative objections to judicial review in general. Section 2 sketches a normative defense this practice, and Section 3 presents some relevant aspects of the ECtHR. Section 4 returns to consider the various objections. The mandate, composition, institutional environment and mode of operation of the ECtHR renders it immune to several of these criticisms. The conclusion identifies some objections that merit further attention, both for empirical research and for normative analysis.
Secondly, the European Constitutional Law Review (vol. 6, No. 2, 2010) features an article on the Sejdic and Finci judgment of the Court, entitled 'The Strasbourg Court on the Dayton Constitution: judgment in the case of Sejdic and Finci v. Bosnia and Herzegovina', authored by S. Bardutzky.