Monday 28 February 2011

TV Programme on the European Court

Following the controversy in the United Kingdom on the Court's judgments on voting rights for prisoners, the BBC programme 'The Record Europe' has dedicated an episode to the European Court of Human Rights. It explains the controversy and the role and functioning of the Court. You can watch it on youtube (in two parts) here and here. This is the programme's own announcement:

The Record Europe has been to the European Court of Human Rights in Strasbourg, the institution at the centre of a storm in British politics about prisoner voting rights. Is it a model for the rest of the world, or an institution intent on expanding its reach into the territory of national parliaments and courts?

In his first broadcast interview since the furore, the court's most senior judge, Jean-Paul Costa talks to Shirin Wheeler. In Britain some have called for the UK to ignore the rulings of the Court and leave the Convention on Human Rights after the Court ruled the British blanket ban violated the convention. But Jean Paul Costa says that would be a disaster:

"The only country which denounced the convention actually was Greece in 1967 at the time of dictatorship of the Colonels....I cannot imagine even if I can understand some irritation, that UK which is a great country - I admire the UK - could be in the same situation as the Colonels in 1967".

Shirin also speaks to two ambassadors to the Council of Europe about their role in reform of the court, and deciding whether countries' responses to its rulings are adequate. She is joined by Urszula Gacek from Poland and Daryal Batibay from Turkey.
Finally, a debate is held to discuss where the powers of the court should begin and end.
HT to Ed Bates for pointing this out!

Friday 25 February 2011

Article on Pilot Judgments in EHRLR

Stuart Wallace of the University of Nottingham has published an article on the pilot judgments at the European Court in the newest issues of the European Human Rights Law Review (No. 2011) pp. 71-81. It is entitled 'Much ado about nothing? The pilot judgment procedure at the European Court of Human Rights'. This is the abstract:

The pilot judgment procedure at the European Court of Human Rights is described as an innovation in the way the court deals with cases and an effective means of combating the court's backlog. This article analyses the court's jurisprudence and procedural rules to determine whether the pilot procedure is an innovation and whether it is an effective means of achieving its goals. At the outset it should be noted that the objectives of the pilot procedure are not being questioned here, systemic human rights abuses should be eradicated wherever they arise and the court has an important role in tackling them, this article merely critiques the means adopted by the court to tackle these issues. The primary argument of this article is that the component parts of the pilot judgment procedure are not innovative and that the use of pilot judgments has the potential to damage the court on many levels by further delaying the processing of applications, politicising the
court and undermining the court's authority more generally.

Wednesday 23 February 2011

Dutch Short Videos on Key ECHR Rights

A collection of short videos explaining, through the real-life cases of Dutch people, the significance of a number of key ECHR rights is available online (including the right to liberty, the freedom of expression and the right to a fair trial). The videos were developed at the occasion of a symposium organised last year in Middelburg, under the guidance of professor Barbare Oomen. Although only available in Dutch (and by that fact possibly only of interest to the Dutch and Belgian readers of this blog), they offer very accessible introductions to the practical value of the rights contained in the European Convention for citizens. You can watch them here. Recommended!

Thursday 17 February 2011

Transitional Jurisprudence and ECHR Book

How does the European Court of Human Rights deal with issues of transitional justice? What effect do transitions in European states have on Strasbourg case-law and how does Strasbourg jurisprudence affect transitions from authoritarian rule and protracted conflict to democracy and peace? These are some of the key issues at the core of a collaborative project between dr Michael Hamilton, associate professor connected both to the Central European University in Budapest and the Transitional Justice Institute of Ulster University, and myself. The outcome of the research project is a co-edited book entitled 'Transitional Jurisprudence and the ECHR. Justice, Politics and Rights' which will appear with Cambridge University Press this autumn. It contains a wide range of interconnected chapters on freedom of religion, protection of property, non-discrimination, situations of emergency, and on the interplay of politics on the national level and the ECHR. The book will also include comparative chapters on how the Inter-American and African human rights systems have addressed transitions. All written by experts in their respective fields. For more information on the book's contents, look on SSRN here.

Wednesday 16 February 2011

Two New Papers on ECHR on SSRN

In the last few weeks two new papers relating to the European Convention on Human Rights have been posted on the Social Science research Network (SSRN). Wouter P. J. Wils, connected both to the European Commission and to King's College London, has posted 'EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights'. This is the abstract:

This paper deals with the powers of the European Commission and the competition authorities of the EU Member States to enforce Articles 101 and 102 TFEU, and with the procedural rights and guarantees that circumscribe or limit these powers. It focuses in particular on the interplay between the different sources of law governing these matters: EU and national legislation, the Charter of Fundamental Rights of the EU, the European Convention on Human Rights, and the case-law of the EU Courts and the European Court of Human Rights.
Juan J. Garcia-Blesa of the American University in Bosnia and Herzegovina
has posted 'Transitional Exceptions to the Rule of Law in International Administrations: The Case of the OHR in Bosnia and Herzegovina and the Right to Due Process'. This is the abstract:

Promotion and even direct implementation of rule of law in conflict and post-conflict societies, as defined by the UN Secretary-General in 2004-2006, have actually become core activities of the United Nations during the last decades. These tasks are occasionally entrusted to international administrations that exercise a number of legal competences in the field embodied in their international mandates. The Office of the High Representative in Bosnia has been mandated to guarantee that full compliance with the Dayton Peace Agreement is achieved, including respect for the essential elements of rule of law in this society, as a key condition for long-lasting peace. However, some of the competences of the OHR seem to go far beyond the most basic idea of rule of law. This is the case of the power to vet, dismiss and ban public officials from public life at the OHR’s discretion, in permanent and increasing tension with the due process requirements. This anomaly can be explained by the need for some transitional exceptions to the rule of law in conflict and post-conflict societies. Furthermore, suspensions are provided for in every international human rights system on the grounds of exceptional emergency situations (e.g., Articles 4 ICCPR and 15 ECHR). Notwithstanding, there seems to be a common limitation to exceptions in these human rights protection systems that require them to be temporary. After thirteen years of exceptional rule in Bosnia, could this be the time for revision? Any tentative answer would need a thorough evaluation of the political situation in Bosnia. This paper only attempts to offer some reflections on possible legal scenarios.

Tuesday 15 February 2011

Alarming Rise in Requests for Interim Measures

The number of applications might be on the rise in Strasbourg, but the number of requests for interim measures has seen an even sharper increase: a rise of 4000 % in the last four years. If this were a company, the shareholders would be jubilant, but alas this rise reflects growing problems rather than profits. The majority of the requests relate to asylum and immigration matters. The steep rise prompted the Court to issue a statement addressed at states, applicants and lawyers. The statement emphasizes that the Court is not an appeals tribunal for asylum and immigration issues. This is the whole statement:

Governments, applicants and their lawyers urged to co-operate fully with European Court, following “alarming rise” in requests to suspend deportation

European Governments, applicants to the European Court of Human Rights and their lawyers are today being urged to improve co-operation with the Court, regarding requests to suspend deportation, extradition or expulsion, following a 4,000% increase in the number of such requests coming to the Court.

The Court’s President Jean-Paul Costa has issued the statement in the light of the “alarming rise” in the number of these requests (1) for interim measures, under Rule 39 of the Rules of Court, to the “already over-burdened Court”. Under this rule the Court can indicate to the Government concerned any measures (such as suspending deportation) which it considers should be taken while it is examining a case.

Mr Costa reminds Governments, applicants and their lawyers of the Court’s proper but limited role in immigration matters, emphasising their respective responsibilities to "co-operate fully" with the Court. He also stresses that the Court is not an immigration appeals tribunal.

The statement reads as follows: “Between 2006 and 2010 the Court saw an increase of over 4,000 % in the number of requests it received for interim measures under Rule 39 of the Rules of Court. In 2006 the Court received 112 requests. That figure had increased to 4,786 for 2010.

In particular, between October 2010 and January 2011, the Court received around 2,500 requests for interim measures concerning return to one particular State, including 1,930 such requests against Sweden. The vast majority of those applications were incomplete, with insufficient information and documentation to permit the Court to make any proper assessment as to the risks attendant on return. In addition, in 2010, more than 2000 requests were made in respect of the United Kingdom, 400 against the Netherlands and more than 300 against France.

When there is such a large in-flow of applications, it is often not possible for the Court to contact applicants individually to ask for missing documents. Because of a lack of information about proposed dates of return, it is difficult for the Court to make a proper assessment of which applications should be given priority.

More importantly, there is a risk that the small minority of applicants who do face a genuine threat to life and limb in the country of destination will not have their cases examined in time to prevent removal.

Moreover, because of the need to process these applications as a matter of urgency, and given the limited human resources available, the Court and its Registry may be hindered in the performance of their case-processing duties under the European Convention on Human Rights.

It must be underlined that, according to its case-law and practice, the Court will only request a Member State not to deport, extradite or expel a person where, having reviewed all the relevant information, it considers that he or she faces a real risk of serious, irreversible harm if removed. An interim measure requested in this way has binding legal effect on the State concerned.

However, the Court is not an appeal tribunal from the asylum and immigration tribunals of Europe, any more than it is a court of criminal appeal in respect of criminal convictions. Where national immigration and asylum procedures carry out their own proper assessment of risk and are seen to operate fairly and with respect for human rights, the Court should only be required to intervene in truly exceptional cases.

For the Court to be able effectively to perform its proper role in this area both Governments and applicants must co-operate fully with the Court.

In particular it is essential that:

▪ applicants and their representatives respect the Practice Direction on Requests for Interim Measures. In particular, requests for interim measures should be individuated, fully reasoned, be sent with all relevant documentation including the decisions of the national authorities and courts, and be sent in good time before the expected date of removal. The widespread distribution of application forms to potential applicants is not and should not be seen as a substitute for proper legal representation in compliance with these conditions. It must be emphasised that failure to comply with the conditions set out in the Practice Direction may lead to such cases not being accepted for examination by the Court.

▪ Member States provide national remedies with suspensive effect which operate effectively and fairly, in accordance with the Court’s case-law and provide a proper and timely examination of the issue of risk. Where a lead case concerning the safety of return to a particular country of origin is pending before the national courts or the Court of Human Rights, removals to that country should be suspended. Where the Court requests a stay on removal under Rule 39, that request must be complied with.
The practice direction for lawyers can be found here (as Appendix 2)

Monday 14 February 2011

Controversy over Prisoners' Right to Vote in UK: Guest Blog

Dear readers, it is my pleasure to announce a guest blog by Ed Bates, Senior Lecturer in Law at the University of Southampton. He recently published an extensive history of the European Court of Human Rights, on which I reported here. His guest blog addresses the current political turmoil in the United Kingdom relating to the European Courts judgments on voting rights for prisoners. Many thanks to Ed for informing us of the current debate in the UK! Here it is:

The authority and constitutional legitimacy of the European Court of Human Rights was very much in issue last week within the media and in Parliament in the United Kingdom.

At the start of the week, the ECHR was in the headlines following the publication of a report entitled ‘Bringing Rights Back Home’ by the independent ‘think tank’ the Policy Exchange. The Report was not devoted to the Strasbourg Court as such, but, as readers will be able to see, there was strong criticism of its role and function, both generally, and from a British perspective in particular. A response, from a leading human rights QC in the UK, was published in the national newspaper The Independent.

The much bigger issue of the week, however, was a debate by backbench MPs in Parliament over whether prisoners should be given the right to vote, and so whether the United Kingdom should comply with – or flatly refuse to observe - the Strasbourg Grand Chamber judgment in Hirst v United Kingdom of 2005. That judgment in no way requires all prisoners to be given the right to vote; it found a violation of Article 3 of Protocol 1 given the blanket ban on prisoner voting that existed, and still exists, in the UK. The Grand Chamber judgment saw the Court divided (12 votes to 5) on the matter, but the ruling did not, as I recall, cause too much of a stir in the UK at the time – the minority did, however, argue that the majority had extended Article 3 of Protocol 1 too far, and their general warnings about future problems as regards implementation have now proved prophetic. The last British government (defeated in the May 2010 election) failed to do more that set up consultation exercises on what to do to implement Hirst, and so, more than five years after the ruling, the matter has fallen on the lap of the new coalition government. For those interested, the whole political and legal background to this can be found in a very useful House of Commons’ Library publication, so what follows here is only a very brief summary.

From Strasbourg’s perspective, the UK has come under increasing pressure to implement Hirst, first by various political pronouncements from the Committee of Ministers (supervising the implementation of the judgment), and then following Greens and M.T. v United Kingdom (23 November 2010), a pilot judgment in which the Court ordered the UK to bring forward, within six months of the judgment becoming final (August 2011), appropriate legislative proposals to meet the terms of Hirst. There have been other judgments too, including Frodl v Austria (8 April 2010) and Scoppola v Italy No 3 (18 January 2011) in which the Court has reaffirmed the principle that blanket bans on the right of prisoners to vote contravenes Article 3 of Protocol 1. It is worth noting that these latter judgments, which arguably go beyond Hirst, have contributed to some confusion, in the UK at least, as to precisely what needs to be done to satisfy the requirements of Article 3 Protocol 1, beyond modifying the blanket ban on the right to vote.

From the British perspective, however, there has been little appetite for change. The British Prime Minister, David Cameron, said back in November 2010 that it would make him ‘physically ill’ to grant prisoners the right to vote (in fact, under current arrangements the following categories of prisoners do have the right to vote: remand prisoners, contempt of court prisoners and fine defaulters). Nonetheless, the government line, initially at least, was that the right to vote would be given to prisoners serving less than four years. However, there is a strong distaste for this in Parliament (in fact, the House of Commons) itself, which is how we come to the events of last week. Three senior Parliamentarians (including the former Foreign Secretary and Home Secretary, Jack Straw) tabled a motion which referred to the Hirst judgment, supported the blanket ban, sought support for both, and proposed that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers [i.e. not the courts/ the European Court of Human Rights]’. The debate (which is available here) lasted several hours and, on a free (i.e. non-party influenced) vote, went in favour of the motion by a large majority (234 to 22). Although this will not bind the government, it is clearly in a political fix as to what its next move should be. Government spokespersons have said that they will do the minimum to comply with the judgment; but this will require legislative change, and so the consent of the House of Commons, which has now forcefully demonstrated its unwillingness to change the law, the view being taken that the Hirst ruling is simply wrong.

A bigger and perhaps more troubling issue was the evidence of a level of hostility toward the Strasbourg Court amongst certain sections of British MPs. The question was raised as to whether the Court is entitled to have a say on matters such as prison voting, given some MPs’ views that it lacks constitutional legitimacy and has grown too big for its boots. Basically speaking, many British MPs insist that this is a matter for democratic, sovereign Parliaments to resolve; the Strasbourg Court, by contrast, has ruled on a number of occasions now that it is not, indicating that blanket bans of various sorts are unacceptable, and the need for a link between the crime committed and disenfranchisement. So, we have the classic constitutional dilemma: ‘who has the last word’?

Of course, this is not the first time that tensions between Parliament and the European Court have arisen in the UK, or elsewhere in Europe. Arguably, however, the prisoner voting issue has brought them into much sharper focus than in most previous incidents. Here we see an issue in which both the Court and the UK Parliament have unambiguously fixed themselves to apparently irreconcilable positions. How this matter will be resolved will be a strong test of the UK’s overall commitment to the Convention - or could it result in a blow to the authority of the Court?

Ed Bates, University of Southamton

Friday 11 February 2011

Election of ECtHR Judges Information Sheet

The Secretariat of the Committee on Legal Affairs and Human Rights of the Council of Europe's Parliamentary Assembly has prepared an information document entitled 'Procedure for electing judges to the European Court of Human Rights'. Apart from providing a succinct overview of the procedure itself, including links to all kinds of documents, it also contains information on when new elections for judges will be held. This shows for example that towards the end of this year president Costa will retire.

Thursday 10 February 2011

Overview of ECHR Articles in Journals

The monthly overview of human rights journal articles, compiled by the documentalists of my home base, the Netherlands Institute of Human Rights (SIM) again contains a range of ECHR-related articles:

First, in several issues of the Goettingen Journal of International Law. Recently:
* B. Bowring, ‘The Russian Federation, Protocol no. 14 (and 14bis) , and the battle for the soul of the ECHR’ (2010, vol. 2, no. 2) pp. 589-618.

And earlier:
* C. Janik and T. Kleinlein, ‘When Soering went to Iraq....: problems of jurisdiction, extraterritorial effect of norm conflicts in light of the European Court of Human Rights' Al-Saadoon case’ (2009, vol. 1, no. 3) pp. 459-518.

Most of the first issue of volume 26 of the Journal of Law and Religion (2010/2011) is dedicated to religion and the ECHR:
* B. Scharffs, ‘Symposium introduction: the freedom of religion and belief jurisprudence of the European Court of Human Rights: legal, moral, political and religious perspectives’, pp. 249-260.
* Z. Calo, ‘Pluralism, secularism and the European Court of Human Rights’, pp. 261-280.
* G. Robbers, ‘Church autonomy in the European Court of Human Rights - recent developments in Germany’, pp. 281-320.
* C. Evans, ‘Individual and group religious freedom in the European Court of Human Rights: cracks in the intellectual architecture’, pp. 321-343.
* M. Evans, ‘From cartoons to crucifixes: current controversies concerning the freedom of religion and the freedom of expression before the European Court of Human Rights’, pp. 345-370.

In the periodical Religion and Human Rights (2011, vol. 6, no. 1), the following article has been published:
* P. Slotte, ‘Securing freedom whilst enhancing competence: the "knowledge about christianity, religions and life stances" subject and the judgment of the European Court of Human Rights, pp. 41-73.

And finally, the German Law Journal in its vol. 11, no. 5 of 2010 includes:
* C. Tomuschat, ‘The effects of the judgments of the European Court of Human Rights according to the German constitutional court’, pp. 513-526.
* C. Coors, ‘Headwind from Europe: the new position of the German courts on personality rights after the judgment of the European Court of Human Rights’, pp. 527-538.

Wednesday 9 February 2011

Book on ECHR and Marginalised Groups

Martinus Nijhoff Publishers has published the book 'The European Court of Human Rights and the rights of marginalised individuals and minorities in national context', edited by Dia Anagnostou and Evangelia Psychogiopoulou. They are both research fellows at the Hellenic Foundation for European and Foreign Policy (ELIAMEP) in Athens. The book approaches the topic by dealing with a number of country case studies. This is the abstract:

This volume explores the role of the ECtHR in protecting marginalised individuals and minorities. What factors and conditions have led growing numbers of such individuals and minorities to pursue their rights and freedoms in front of the ECtHR and how has the latter responded to these? Does the Convention and the jurisprudence of the Strasbourg Court enhance the protection of vulnerable groups at the national level and expand their rights? Or do they mainly tend to fill in relatively minor gaps or occasional lapses in national rights guarantees? Comprising a set of eight country-based case studies, this volume examines litigation on behalf of marginalised individuals and minorities, and the relevant ECtHR jurisprudence across the following countries: Austria, Bulgaria, Germany, Greece, France, Italy, Turkey and the UK.
And this is the table of contents:

1. The Strasbourg Court, Democracy and the Protection of Marginalised Individuals and Minorities Dia Anagnostou;
2. Protecting Individuals from Vulnerable Groups and Minorities in the ECtHR: Litigation and Jurisprudence in Austria Kerstin Buchinger, Barbara Liegl and Astrid Steinkellner;
3. Protecting Individuals from Minorities and Other Vulnerable Groups in the European Court of Human Rights, Litigation and Jurisprudence: The Case of Bulgaria Yonko Grozev;
4. Protecting Individuals from Minorities and Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in France Emmanuelle Bribosia, Isabelle Rorive and Amaya Úbeda de Torres;
5. The Protection of Marginalised Individuals and Minorities in Germany: The Role of National and European Judicial Mechanisms Christoph Gusy and Sebastian Müller;
6. The European Court of Human Rights in Greece: Litigation, Rights Protection and Vulnerable Groups Evangelia Psychogiopoulou;
7. Protecting Individuals Belonging to Minority and Other Vulnerable Groups in the European Court of Human Rights: Litigation and Jurisprudence in the Italian System Serena Sileoni;
8. Protecting Marginalised Individuals and Minorities in ECtHR: Litigation and Jurisprudence in Turkey Dilek Kurban;
9. The European Court of Human Rights in the UK: Litigation, Rights Protection and Minorities Susan Millns, Christopher Rootes, Clare Saunders and Gabriel Swain;
10. Conclusions Yiorgos Kaminis.

Tuesday 8 February 2011

Article on Court After Interlaken

The newest issue of the European Journal of International Law (vol. 21, no. 4) includes an article by Helen Keller, Andreas Fischer and Daniela Kühne entitled 'Debating the Future of the European Court of Human Rights after the Interlaken Conference: Two Innovative Proposals'. This is the abstract:

The purpose of this article is to give new impetus to the topical debate on reforming the ECHR in the wake of the Interlaken Conference, at which the ECHR states parties agreed on a roadmap for the future evolution of the Convention system. We highlight two issues which have so far been underexposed in the literature. First, reform measures relating to the new admissibility criterion, just satisfaction, and the pilot judgment procedure are only partially promising, because they are premised on the condition of their being applicable telle quelle in all the states parties. If Convention reforms are to be effective, they must take due account of differing realities relating to a country's human rights situation and the quality of its judiciary. Secondly, given the very high proportion of so-called manifestly ill-founded applications, the Court's practice of rejecting them without giving reasons leads it into a legitimacy problem. We suggest a new provision in the Rules of Court which makes the Court's practice concerning the handling of manifestly ill-founded applications more transparent.

Wednesday 2 February 2011

Annual Report of Court and Opening of Judicial Year

Last week, the Court issued its Annual Report over 2010. It shows a continuing of the worrying trend of increasses: 140,000 pending cases at the end of 2010, a rise of 7% in allocated applications and a rise of 65% (!) in requests for interim measures. Webcasts of the press conference of President Costa (held on Thursday 27 January) are available on the Court's website. A webcast of the solemn hearing which formally marked the opening of the judicial year can also be found there, as well as of a seminar entitled "What are the limits to the evolutive interpretation of the Convention?".

In addition to the report, the Court has put number of shorter documents online. There is a clear pie chart of pending applications which shows that as in previous years over half of all pending applications comes from Russia, Turkey, Romania and Ukraine. What may be more striking is that 37 (out of a total of 47) state parties account for only 22,1% of the total of applications. For more country per country information and charts ,there is the Analysis of Statistics 2010. It also shows statistics on how quickyl cases are dealt with, divided according to the urgency category. This reveals that even among the highest urgency category, several dozens of cases have been pending several years. Another clear sign that new and creative ways of solving the case-load issue are needed. Finally, the Court published a Table of Violations per country.

The first steps to evaluate the Protocol 14 and post-Interlaken reforms will be taken at a ministerial meeting in Izmir in Turkey at the end of April.

Tuesday 1 February 2011

Common Statement CJEU and ECtHR

Last week, the two main regional European Courts, the Court of Justice of the European Union, in Luxembourg, and the European Court of Human Rights, in Strasbourg, issued a joint communication which gives in insight in the contours of some of the consequences of EU Accession to the ECHR on the relation between the two courts. The joint communication goes into the two different situations that may arise.

The first concern so-called direct actions in which individuals complain about actions of the EU institutions themselves. In those instances the rule of exhaustion of domestic remedies would entail that applicants should first address the EU Courts under EU Law. One may note that the label "domestic" becomes an ironic name-tag, with the domestic area in question covering more than half of all ECHR state parties.

The second would relate to the indirect actions in which people complain about the acts of EU member states in implementing EU law. In those cases, legal proceedings are on the national level with the possiblity, and in some cases the obligation, for national judges to ask the CJEU for a preliminary ruling. In the very rare cases in which this would not happen but nevertheless an issue of EU law was clearly at stake, the Court have agreed now that a procedure should be put in place for those case enabling the CJEU to pronounce itself (a so-called "internal review") before the ECHR adjudicates the case. The parties in he case would then, in the Strasbourg proceedings, be able to submit observations on the CJEU's pronouncement. In practice this will be a relatively rare matter, but it might lead to an interesting legal tango for Strasbourg and Luxembourg. Importantly, the Courts stress that no amendment to the ECHR is needed (the long Protocol 14 ratification nightmare seems still fresh in the minds of everyone concerned).

The statement also re-emphasizes that with the growing importance of the Charter of Fundamental Rights of the European Union in CJEU jurisprudence, it is crucial to ensure the coherence between overlapping provisions of the Charter and the ECHR.

And so the rapprochement between two of the world's most effective international courts continues.