Thursday 31 March 2011

London Conference on EU Accession to ECHR

The European Institute of University College London is organising a conference on 20 May 2011 entitled "Who will be the ultimate guardian of human rights in Europe? Implications of the European Union’s Accession to the European Convention on Human Rights". This is the information provided by the organisers:

The aim of this one day conference is to address the ever-topical question of the ultimate guarantor of human rights in the EU: the Union’s own court (the European Court of Justice), the European Court of Human Rights or national constitutional courts?

Given the envisaged accession of the European Union to the European Convention on Human Rights, there is ample reason for re-visiting this question: the accession might completely change the landscape of human rights protection in Europe.

The legal background is as follows: Article 6 (2) of the Treaty on European Union puts the EU under an obligation to accede to the ECHR. With the entry into force of Protocol No. 14 to the ECHR, an accession has now become possible. Negotiations between the EU and the Council of Europe promptly started in July 2010 and are expected to be completed by June 2011.

The conference is to be held as a one day event on Friday, 20 May 2011 in the Faculty of Laws, University College London. Its aim is to bring together judges, officials, politicians, practitioners and academics, who will discuss the outcome of the accession negotiations so far, highlight potential problems (and proposals to resolve them) and consider the potential impact of an accession on the legal orders of the Union and the Member States. It is hoped that the outcome of the conference will lead to new insights about the future of human rights protection in Europe. The conference will be rounded up with a discussion panel co-organised and hosted by the German Embassy.

Tuesday 29 March 2011

Article on ECHR Abuse Clause and Freedom of Expression

The newest issue of our Utrecht/SIM publication, the Netherlands Quarterly of Human Rights (vol. 29, no. 1) includes an article by Hannes Cannie and Dirk Voorhoof, both of Ghent University, entitled 'The Abuse Clause and Freedom of Expression in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?'. This is the abstract:

With regard to certain types of hate speech, the European Court of Human Rights and the former Commission have developed a tradition of applying Article 17 ECHR; the so-called abuse clause. This application leads to a categorical exclusion from protection of the right to freedom of expression (Article 10), an approach that contrasts sharply with the Court's general attitude toward accepting and even creating a broad scope of protection under this right. It also contrasts with the Court's usual examination of interferences with the freedom of expression in the light of the case as a whole, all its factual and legally relevant elements being taken into consideration. The aim of this article is to show that the abuse clause's application is undesirable, since it tends, even in its indirect variant, to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework. The application of Article 17 is also unnecessary, as it in no way generates an added value for democracy or for human rights protection. We therefore strongly encourage the European Court to consider all forms of hate speech from the perspective of Article 10, without affording a decisive impact, directly nor indirectly, from Article 17 of the Convention.

Monday 28 March 2011

Italian Book on Role of the Judge and ECHR

Roberto Conti has just written a new Italian-language book on the European Convention on Human Rights and the role of the judge (La Convenzione europea dei diritti dell'uomo. Il ruolo del giudice), published with Aracne Editrice. This is the abstract in Italian:

In una pubblicazione, edita nel 2002, dedicata alla Convenzione europea per la salvaguardia dei diritti umani il capitolo dedicato al ruolo della giurisprudenza italiana nell’applicazione della CEDU constava di appena sei pagine. Le riflessioni presenti in questo volume intendono, per un verso, dare atto dell’ormai inarrestabile capacità della Convenzione anzidetta di diventare “protagonista” di numerose e rilevanti pronunzie giurisprudenziali domestiche, ma anche – e soprattutto – “fotografare” il ruolo centrale progressivamente assunto dal giudice nazionale nella protezione dei diritti fondamentali. L’approccio triangolare seguito, aperto a individuare i rapporti fra la Costituzione, la CEDU e la Carta dei diritti fondamentali di Nizza-Strasburgo, intende offrire al lettore uno strumento che possa metterlo in condizione di esercitare, a ogni livello, il ruolo di difensore dei diritti fondamentali.
The book focuses on the role of national judges in interpreting and applying European human rights standards.

Friday 25 March 2011

New Academic Articles on ECHR

A few recent articles concerning the ECHR in law journals: the Columbia human rights law review (vol. 42, 2010/11, no. 1), pp. 233-277 includes:

* A. Izumo, Diplomatic assurances against torture and ill treatment: European Court of Human Rights jurisprudence

The Fordham international law journal (vol. 34, 2010/11, no. 1, pp. 46-77)

* O. Akbulut, Criteria developed by the European Court of Human Rights on the dissolution of political parties

Finally, an article in the German journal Europäische Grundrechte Zeitschrift (vol. 38, 2011, pp. 1-11):

* J. Baumann, Auf dem Weg zu einem doppelten EMRK-Schutzstandard? Die Fortschreibung der Bosphorus-Rechtsprechung des EGMR im Fall Nederlandse Kokkelvisserij.

Thursday 24 March 2011

Pilot Judgment Procedure Included in Rules of Court

The phenomenon of the Pilot Judgment Procedure for a long time lacked a clear legal basis, although it had a stronger political backing by way of calls of the Committee of Ministers. In addition, it was not always clear when and how the European Court of Human Rights would use the procedure. Most recently, the Interlaken summit of last year asked the Court to develop clear and predictable standards for the procedure. A call which had also been made by various NGOs and academics, including myself in this article 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' (amongst many other authors obviously). After a few years of 'piloting' the pilot procedure, the Court has now included a new provision in its Rules of Court. The new Rule 61, which will be effective at the end of March.

The new rule codifies the procedure. It provides that the pilot procedure can be used when facts in application "reveal in the Contracting State concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications." The new rule does provide a stronger legal basis, but it does not take away many of the uncertainties surrounding the pilot judgment procedure. For example, it indicates that a procedure may be started by the Court of its own motion or at the request of one of the parties. It also states that the Court may set time limits for the remedial measures required, and that it may adjourn similar applications.

One could therefore argue, on the downside, that a lot of uncertainy remains. On the upside, it offers the Court the required flexibility to assess what is expedient. Where it does strengthen the existing situation is on the information side of things: not only the applicants in the pilot case, but also applicants in the adjourned cases should be notified of relevant developments affecting their cases. In addition all key players in the Council of Europe (Committee of Ministers, Parliamentary Assembly, Secretary-General, and Human Rights Commissioner) shall be informed whenever a pilot judgment is adopted "as well as of any other judgment in which the Court draws attention to the existence of a structural or systemic problem in a Contracting State." This should strengthen the supervision on implementation and the tackling of underlying problems more structurally. Also, the Court's website will give more information on the initiation, adoption, and execution of pilot judgments. Taken together, although not entirely ideal, the new rule is a step forward.

Wednesday 23 March 2011

Bluff Your Way Into The ECHR

The information department of the Court has compiled a small online brochure entitled 'The European Convention on Human Rights in 50 Questions'. Ranging from "Does the Convention evolve?" to 'What is a pilot judgment?', the small online booklet contains a wide range of factual information. However, this is not the kind of guide which will serve to explain the Convention to your little cousin. For to ask questions such as 'What is a third-party intervener?' one is probably already somehwat aware of the particular features of Strasbourg proceedings. More useful probably for law students or journalists who report on Strasbourg.

Tuesday 22 March 2011

Working Paper on ECHR and Copyright Law

Robin Herr of the Copenhagen Business School Law Department has posted a working paper on SSRN entitled 'The Right to Receive Information Under Article 10 of the ECHR: An Investigation from a Copyright Perspective'. This is the abstract:

The purpose of this paper is to investigate the right to receive information under Article 10 of the European Convention of Human Rights in order to determine whether or not it is relevant to copyright law. The bulk of the article describes how the right to receive information operates. Focus is placed on the composition of the right, the scope of the test to justify an interference, principles that may affect the Court’s evaluation and any negative or positive obligations that may arise. In conducting this part of the research, over 125 cases were investigated. After detailing the case law, efforts are made to identify state obligations and trends that could potentially affect copyright. The article concludes with a brief statement of the areas of copyright law in which these obligations and trends could be relevant.

Monday 21 March 2011

New Guide on EU and ECHR Non-Discrimination Law

Today is the International Day for the Elimination of Racial Discrimination. It also marks the launch of a new book entitled 'European Non-Discrimination Law', which integrates the converging yet very complex interlocking system of non-discrimination law of the European Union and of the European Convention on Human Rights. In a joint project the EU's Fundamental Rights Agency and the European Court of Human Rights have endeavored to make the legal framework on the issue more accessible (and indeed it is written in a very reader-friendly way, enlightening the legal rules also for non-experts). This is the abstract of the book, which is being launched in Strasbourg today:

The handbook is the first publication to present and explain the body of non-discrimination law stemming from the European Convention on Human Rights and European Union law as a single, converging legal system.

The substance of non-discrimination law is set out according to the definitions of direct and indirect discrimination as elaborated through the European Convention on Human Rights (including Protocol 12) and the European Union’s Gender Equality Directives, Racial Equality Directive and Employment Equality Directive. The meaning of provisions is presented through analysis of cases delivered by the European Court of Human Rights and the case-law of the Court of Justice of the European Union. Comprehensive analysis of the law is ensured by supplementing this body of case-law with decisions and interpretive documents from national courts and equality bodies, as well as other international bodies such as the United Nations Committee on the Elimination of Racial Discrimination, the Council of Europe, European Commission against Racism and Intolerance and the European Committee of Social Rights.
The handbook is avalaible on the website of the Fundamental Rights Agency in English, French and German and other EU languages are in principle to follow later on.

Friday 18 March 2011

Grand Chamber Judgment in Lautsi: No Violation

Today, the Grand Chamber of the European Court of Human Rights ruled that Italy did not violate the ECHR in the highly publicised case about crucifixes in classrooms in Italian public schools. The judgment in Lautsi v Italy follows two years after an earlier Chamber judgment in the same case and has led to the opposite outcome. The case had been referred to the Grand Chamber at the request of Italy. In a nutshell, the Grand Chamber ruled that the decision whether or not to put crucifixes in classrooms fell within the state's margin of appreciation. Although the cruxifix was above other meanings a religious symbol, the Grand Chamber found no evidence that "the display of such a symbol might have an influence on pupils." It was a rather "passive symbol" as opposed to active teaching on a certain religion or forced participation of students in religious activities. Thus the right to education (article 2 of Protocol one had) in the view of a large majority of the Grand Chamber (fifteen votes to two) not been violated. It held that although the presence of crucifixes made Italy's majority religion visible in classrooms, this as such did not amount to indoctrination.

This is probably the case with the largest number of state party interventions ever to come before the Court so far, including both states, NGOs, members of the European Parliament and others, and also one of the cases with the most elaborate concurring and dissenting opinions (18 pages in total).

The European Parliament Platform for Secularism in Politics has already issued a press release in which they deplore the judgment as a slap in the face for secularism. According to the chair of the platform, Dutch MEP Sophie in 't Veld, "This ruling is effectively scrapping the separation of church and state. The Grand Chamber apparently accepts that governments may impose a particular religion on its citizens. It is shocking that such a medieval practice gets the backing of the Grand Chamber. After centuries of enlightenment, we still have to fight against theocracy."

I still need to read the judgment in more detail, but my first impression is that the Grand Chamber did a better job at cutting this very difficult Gordian knot than the Chamber previously did, with nuance and leaving leeway for future cases in which children do directly suffer from religious pressure in schools and where the European Court would find violations. One might also argue that in the current political climate, with incessant attacks on the Court's jurisprudence in a number of European countries, a highly mediatised judgment as the present one, leaving explicit room for a country's own traditions and margin of appreciation albeit still obviously with the Court guarding the outer limits, is wisely timed from a juridico-political perspective.

For my earlier comments on the Chamber judgment, see here. For the Court's press release about today's judgment, see here and for the webcast of the hearing in the case before the Grand Chamber, click here.

Undoubtedly, this Grand Chamber judgment will elicit as much or even more discussion than the previous one in the same case.

Thursday 17 March 2011

Case Note to Gäfgen v Germany in International Legal Materials

I have just posted on SSRN my introductory case note to the European Court's Grand Chamber judgment in the case of Gäfgen v Germany, on which I posted earlier here, as it was published in the International Legal Materials of the American Society of International Law (volume 49, no. 6, 2010). This is the abstract:

This case note introduces and contextualises the key aspects of the European Court of Human Rights Grand Chamber judgment in the case of Gäfgen v Germany, in which several violations of the ECHR were found. The case concerned the threat of torture by police officers when questioning a suspect and the role this played in the ensuing trial. Also relates to the issue of 'fruit of the poisonous tree'.

Wednesday 16 March 2011

Two Cases Referred to Grand Chamber

Recently, a panel of five judges of the European Court of Human Rights decided to refer two cases on which previously sections of the Court pronounced themselves, to the Grand Chamber. It concerns the cases of Kurić and Others v. Slovenia, on the rights of the so-called “erased” people, who failed to acquire or maintain citizenship of the newly-established Slovenian State in 1991, and Konstantin Markin v. Russia, on the refusal to grant parental leave to a Russian serviceman. Both requests were made by the respective states. I earlier reported on the Markin case here.

Requests for 37 other cases were rejected, which means those judgments have become final. For a full list, see the press release.

Monday 14 March 2011

Conference on ECHR and Detention

In their collaborative series of lectures and conferences, the French Council of State and the European Court of Human Rights are organising a conference on 'the European Law Applying to Detention'. The conference will be held in the evening of Monday 28 March from 17h00 to 20h00 at the Council of State premises in Paris. Among the speakers are the judge elected in respect of Belgium, Ms Françoise Tulkens and various others. For the official announcement and more practical information, see here.

Friday 11 March 2011

Enhanced Supervision by Committee of Ministers of Priority Cases

This week, the Committee of Ministers held its first meeting of 2011 to supervise the execution of judgments of the European Court. As part of the Interlaken reform process the Committee has introduced a new working method. In order to give the most intense attention to those instance where it is most needed, the Committee has initiated, according to recent information on its website, a two-track system:

"a “standard supervision” and an “enhanced supervision”. “Enhanced supervision” applies to cases meriting priority attention by the Committee of Ministers as a result of their nature or the types of questions raised :

· judgments requiring urgent individual measures;

· pilot judgments;

· judgments raising major structural and/or complex problems as identified by the Court or by the Committee of Ministers;

· interstate cases;

· other judgments which for special reasons require such supervision."
Just like the Court introduced a priority system last year, securing better attention for key cases, the changes in the Committee's working system now also result in specific priorities.

A full overview of all accompanying changes in the Committee's working methods, can be found in this information document of last December.

For more information, see the webpage of the Committee on the execution of judgments.

Thursday 10 March 2011

Discrimination of HIV-Positive Persons Judgment

Today the Court concluded in a case against Russia that the refusal of a residence permit to an Uzbek national solely because he was HIV-positive was in violation of the European Convention of Human Rights. The case of Kiyutin v Russia related to a man who had settled in Russia and married a Russian wife and had a daughter with her, also of Russian nationality. When he applied for a residence permit, he was obliged under Russian law to undergo a HIV test and the result was positive. On the basis of the test outcome his permit was refused by reference to Russian legislation.

The European Court chose to assess the case under a combination of Articles 8 (right to family life) and Article 14 (prohibition of discrimination). First, the Court had to decide whether a difference of treatment based on HIV-positive status fell within the prohibited grounds of Article 14. Since health as such is not mentioned in that Convention provision, the Court had to decide whether this case could fall under the notion of "any other status". In earlier cases in the past two years, the Court had already found that physical disabilities and health impairments fell within the scope of the prohibition of discrimination. Building on this earlier case-law (and on pronouncements by the UN and the Parliamentary Assembly of the Council of Europe), but now in a more general and explicit way, the Court held that (para. 57):

"a distinction made on account of one’s health status, including such conditions as HIV infection, should be covered – either as a form of disability or alongside with it – by the term “other status” in the text of Article 14 of the Convention."
Subsequently, the Court found that Mr Kiyutin was in an analogous situation to other foreigners applying for a residence permit on account of their family ties to Russia. It then went on to consider, under its standard test, whether the difference in treatment was objectively and reasonably justified. It is in the assessment of the width of the margin of appreciation that the true importance of this judgment can be found: the Court held that people with HIV/AIDS have suffered from prejudice, stigma and exclusion in the last three decades. In a short but clear and admirable overview, the Court summarizes what this entailed (para. 64):

"In the early years of the epidemic when HIV/AIDS diagnosis was nearly always a lethal condition and very little was known about the risk of transmission, people were scared of those infected due to fear of contagion. Ignorance about how the disease spreads has bred prejudices which, in turn, has stigmatised or marginalised those who carry the virus. As the information on ways of transmission accumulated, HIV infection has been traced back to behaviours – such as same-sex intercourse, drug injection, prostitution or promiscuity – that were already stigmatised in many societies, creating a false nexus between the infection and personal irresponsibility and reinforcing other forms of stigma and discrimination, such as racism, homophobia or misogyny. In recent times, despite considerable progress in HIV prevention and better access to HIV treatment, stigma and related discrimination against people living with HIV/AIDS has remained a subject of great concern for all international organisations active in the field of HIV/AIDS. The UN Declaration of Commitment on HIV/AIDS noted that the stigma “increase[d] the impact of the epidemic on individuals, families, communities and nations” (see paragraph 28 above) and UN Secretary General Mr Ban Ki-moon acknowledged that “to greater or lesser degrees, almost everywhere in the world, discrimination remain[ed] a fact of daily life for people living with HIV” (6 August 2008). The Court therefore considers that people living with HIV are a vulnerable group with a history of prejudice and stigmatisation and that the State should be afforded only a narrow margin of appreciation in choosing measures that single out this group for differential treatment on the basis of their HIV status."
Difference of treatment on the basis of HIV/AIDS are thus put in the same series of earlier established suspect grounds of difference in treatment such as sex, sexual orientation, race or ethncity, mental faculties, or disability. This is the main reason for narrowing the state's margin of appreciation and for a strict scrutiny by the Court of measures based on this distinction. The second reason for a narrow margin relates to the concrete practice of excluding people with HIV/AIDS from residence permits. On that latter point, the Court found that there is no European consensus to defend this, since the overwhelming majority of Council of Europe member states do not exclude people on that basis.

Having established the narrow margin of aprpeciation, the Court tests the measure in-depth.

First, it goes into the relevance of the justificiation: is the protection of public health truly served by the measures at stake. The answer is a clear and resounding 'no!'. Travel restrictions on people with HIV/AIDS have, by a wide range of experts and organisations, been deemed to be ineffective ways to combat the disease. As the Court noted, it is not a highly contageous disease such as bird flu or SARS. Moreover, the argument of health protection adduced by Russia is fatally weakened by the fact that no restrictions on that basis applied to tourists, short-term visitors or Russian nationals travelling to and from Russia. In what might almost be called an exaggerated attempt at pedagogy, the Court even emphasized that the policy might be counterproductive (para. 71):

"Finally, it is noted that travel and residence restrictions on persons living with HIV may not only be ineffective in preventing the spread of the disease, but may also be actually harmful to the public health of the country. Firstly, migrants would remain in the country illegally so as to avoid HIV screening, in which case their HIV-status would be unknown both to the health authorities and to migrants themselves. This would prevent them from taking the necessary precautions, avoiding unsafe behaviour and accessing HIV prevention information and services. Secondly, the exclusion of HIV-positive foreigners may create a false sense of security by encouraging the local population to consider HIV/AIDS as a “foreign problem” that has been taken care of by deporting infected foreigners and not allowing them to settle, so that the local population feels no need to engage in safe behaviour."
Thus the Russian policy was not an appropriate means of protection public health.

The second fatal blow to Russian practice was the "blanket and indiscriminate nature" of the ban; no individualised assessment seemed to be possible by national courts, since the legal provision was so absolute. All in all, the Russian government went beyond the narrow margin of appreciation and the Court unanimously found a combined violation of Articles 8 and 14.

It is important to see how influential the third party submission of the NGO Interights was on the Court's reasoning. That submission compiled a host of international materials (amongst others from the United Nations and WHO) on some of the key questions in the judgment. While these third party interventions are in most instances aimed at progressively developing human rigths prudence - usually to the benefit of the applicant, this does not always need to be the case. The forthcoming Grand Chamber judgment in Lautsi v Italy (Friday 18 March) is a case in which third parties also intervened to support to defendant state's position.

The judgment is a key symbolic step in recognition of the negative effects of the pernicious and persistent prejudices against people with HIV/AIDS and as such its importance goes beyond the issue of residence permits - it will resound in all policy areas all over Europe wherever people are treated differently merely on the basis of living with HIV/AIDS.

Wednesday 9 March 2011

ECHR Articles in Newest Issue of HRLR

The March issue (vol. 11, issue 1, 2011) of the Human Rights Law Review includes a number of articles on the ECHR.

* Steven Greer, 'Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gäfgen Case'

In Gäfgen v Germany the majority of a Chamber of the European Court of Human Rights affirmed that police threats to torture suspects always violate Article 3 of the European Convention on Human Rights, but that in certain circumstances such as those presented by this case, charging and convicting but leniently punishing the officers concerned provides adequate redress. A majority of the Grand Chamber held that, on the contrary, such violations should always be severely punished even when motivated, as here, by the urgent imperative of rescuing a kidnapped child. This article argues that, on Article 3, the majority of the Chamber reached the right result but not entirely for the right reasons, while the judgment of the majority of the Grand Chamber is methodologically, substantively and morally flawed. Having explored the central underlying normative dilemma neglected by all judges on both panels—how should conflicts between two competing instances of the same ‘absolute’ human right be resolved?—it concludes that, in such circumstances, courts have no legitimate alternative but to make a moral rather than a legal choice taking fully into consideration what is at stake for both parties in the widest possible senses. The verdict of the majorities on both panels that there was no violation of the applicant’s right to a fair trial is also defended, and the issues raised by the Gäfgen case are contrasted with the much-debated ‘ticking bomb’ scenario with which it is easily but mistakenly confused.
* Nicolas A. J. Croquet, 'The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?'

The International Criminal Court (ICC) has been a mirror of the European Court of Human Rights when defining the scope of defence rights and limiting their exercise on public interest grounds. The ICC has been consistently deferential to the Strasbourg Court in the interpretation of the accused’s rights to disclosure of evidence and to cross-examine prosecution witnesses, leaving the door open for a virtual theory of implied external limitations upon defence rights. The ICC has nevertheless failed to provide a rationale, besides its non-systematic reference to the ICC Statute’s human rights enabling clause, when cross-fertilising with the Strasbourg Court. The latter has not only exerted influence over other international human rights monitoring bodies but also accounted for judicial developments within domestic and international fora when tailoring its own human rights standards. The ICC has overall proven to be a promising platform for extrapolating regional interpretations of fair trial rights to the international legal order.
And a shorter article on one of the important judgments of last year:

* Loveday Hodson, 'A Marriage by Any Other Name? Schalk and Kopf v Austria'

Tuesday 8 March 2011

Article on EU Antitrust and ECHR

The connections between EU antitrust law and the ECHR receive increasing attention. Earlier, Felix Ronkes Agerbeek guest posted about it on this blog here. Now, Wouter Wils, connected to the European Commission and to King's College London, has published an upcoming article on SSRN, to appear in World Competition: Law and Economics Review (Vol. 34, No. 2, June 2011). It is entitled '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.

Monday 7 March 2011

The Court's Practice Directions for Litigants

A special page of the website of the European Court of Human Rights is dedicated to practice directions. These directions contain clear and succinct information on a number of aspects of the procedures before the European Court and are mainly directed at lawyers litigating cases in Strasbourg. As highlighted earlier on this blog, there is a specific practice direction concerning requests for interim measures, as well as a special page with information on such measures. The other Practice Directions concern the following issues:

* Institution of proceedings
* Written pleadings
* Just satisfaction claims
* Secured electronic filing
* Requests for anonymity

A very useful - and essential - tool for lawyers in the process of lodging a complaint in Strasbourg.

Friday 4 March 2011

New Book on NGOs and ECHR

Loveday Hodson of Leicester University has published the book 'NGOs and the Struggle for Human Rights in Europe' with Hart Publishing. It focuses on the extent and effects of NGO involvement in litigation at the European Court of Human Rights - a fascinating topic! This is the abstract:

This publication provides a fresh perspective on the litigation of the European Court of Human Rights by focusing upon the role that non-governmental organisations play in it. The inspiration for this work was the growing literature that points to human rights as the outcome of political and social struggles. The role that NGOs play in these struggles is well-documented in the context of other international and regional human rights tribunals, but has been less widely written about in the context of the European Court of Human Rights. The Court is typically subject to legalistic, as opposed to socio-political, scrutiny. In this book the Court's litigation is re-cast as a site where politically motivated actors attempt to impact upon the meaning that is given to the language of the European Convention on Human Rights and to use the Convention as a mechanism that can contribute to social change.

For the purposes of this research a mixture of quantitative and qualitative research techniques are adopted. These methods facilitate the author's desire to obtain both a de-centred perspective on the Court's functions and a systematic picture of the scale of NGO involvement in the Court's litigation. The core of this work is primarily based on data obtained from a sample of cases in which the Court had delivered judgment, and a plethora of associated materials, including extensive interviews with NGOs that were involved in those cases. Ultimately, this book challenges the idea that the litigation of the Court is bound to the idea of achieving individual justice and highlights the meaningful impact that NGOs have on certain important sections of the Court's litigation.

Wednesday 2 March 2011

ECHR, Counter-Terrorism and Refugees

Jens Vedsted-Hansen of Aarhus University School of Law has published an article entitled 'The European Convention on Human Rights, Counter-Terrorism, and Refugee Protection' in the Refugee Survey Quarterly (vol. 29, No. 4, pp.189-206). This the the abstract:

The legal developments pertaining to the non-refoulement principle under Article 3 of the European Convention on Human Rights provide ample illustration of the dilemmatic relationship between refugee protection and anti- or counter-terrorism measures. Following the terrorist attacks on 11 September 2001 a variety of attempts were made to have the European Court of Human Rights modify its interpretation of Article 3 as providing absolute protection against refoulement. The article depicts these efforts and the intertwined usage of law and policy measures by various actors in the European arena. The Court’s response is described and analysed extensively, demonstrating its insistence on fundamental protection principles. However, problems of national security are still perceived as serious by the executive branches of Governments and their security services, resulting in renewed efforts to control the movement and secure expulsion of persons considered dangerous. In that connection, diplomatic assurances have come to play an important role, partly beyond what can be considered sustainable, and thus an issue of further legal disputes.

Tuesday 1 March 2011

Article on ECHR and Domestic Violence

Lee Hasselbacher has published 'State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection' in the Northwestern University Journal of International Human Rights (Vol. 8, No. 2, 2010). The article places the Eurpean Court's Opuz judgment in a broader international human rights law perspective. The Journal's articles are freely available online.