Tuesday 26 April 2011

Joint NGO Statement for Izmir Conference

Today, the High Level Conference on the future of the European Court of Human Rights started in the Turkish city of Izmir. This two-day conference is a meeting of state representatives of all the parties to the European Convention and follows up on a similar conference in Interlaken last year. The main purpose is to take stock of the developments since then and to agree on any further steps to be taken. A consortium of human rights NGOs (including Amnesty International, Interights, EHRAC, Justice, Liberty, the Aire Centre, and the International Commission of Jurists) has issued a joint statement. These are the main points:

· the fundamental right of individual petition is preserved and not further curtailed by imposing a fee on applicants or adding additional admissibility criteria;
· there is an efficient, fair, consistent, transparent and effective screening of applications received, in order to identify the admissible applications from the very high proportion (around 90 per cent) of applications that are inadmissible under the current criteria;
· judgments are given within a reasonable time, particularly in cases where time is of the essence, or that raise repetitive issues where the Court’s case law is clear and those that arise from systemic problems;
· the Court, including its Registry, is given adequate financial and human resources, without adversely impacting the budgets of other Council of Europe human rights mechanisms and bodies.
Notably, the NGOs emphasize the following (following moves by some states to use Izmir as a platform to curtail the Court in some ways, such as extending the margin of appreciation): "The states should not view the independence of the Court as an obstacle to its reform, and should not allow the reform process to be used to put forward grievances against particular aspects of the Court’s jurisprudence." And: "Renewed efforts by states to implement the Convention in national law, policy and practice are now essential for effective application of the principle of subsidiarity, in accordance with the aims of the Interlaken Declaration. The principle of subsidiarity does not, by contrast, justify states placing inappropriate pressure on the Court with regard to its interpretation and application of the Convention."

New Blog on the Inter-American Court of Human Rights

As an exception to the principle that I only post about ECHR related measures, it is my pleasure to announce the birth of a new blog on one of the regional peers of the European Court: the Inter-American Court of Human Rights. The blog has been set up last month by one of our excellent students in the Utrecht University LL.M. on Human Rights: Oswaldo Ruiz Chiriboga. It provides very regular updates on news, jurisprudence, and academic articles concerning the Inter-American Court as well as related national-level news. The blog's language is Spanish. A good addition to the blogosphere!

I have added the link to the blog to the sidebar. Congratulations, Oswaldo!

Thursday 21 April 2011

Annual Report Committee of Ministers on Execution of ECtHR Judgments

This week, the latest Annual Report 'Supervision of the Execution of Judgments of the European Court of Human Rights' (covering the year 2010) of the Council of Europe's Committee of Ministers was published. According to the Committee's own press release:

The year also witnessed the highest number of new cases transmitted to the Committee of Ministers for execution supervision since it started its supervision function - 1 710 new cases. The number of closed cases nevertheless reached 455 (240 in 2009), and the total number of pending cases was 9 325 (7 880 in 2009) by the end of the year. The compensations awarded to the victims of violations in the new cases in 2010 reach almost 64 million euros (54 million in 2009).

In their introductory remarks to the report, the successive Chairs of the Committee of Ministers’ special human rights meetings in 2010 highlighted the important efforts undertaken to address the high number of cases, both by the Court and by the Committee of Ministers. In light of these efforts and of ongoing reflection on the follow-up of the reform, they expressed great confidence in the future.

Taking stock of 2010, the Director general of human rights and legal affairs of the Council of Europe, Philippe Boillat, insisted on the importance of the new working methods adopted by the Committee of Ministers, in force since 1st January 2011. They should allow for a more effective and transparent supervision of execution and, also, for a more appropriate response to the persisting problem of clone and repetitive cases.

Drawing the conclusions from the significant and continuing increase in the number of cases under the Committee of Ministers’ supervision, the Director general stressed the need to improve both the implementation of the Convention at national level and the execution process.

The report includes detailed statistics highlighting the main tendencies of the evolution of the execution process in 2010 and a thematic overview of the most important developments in the execution of the cases pending before the Committee of Ministers.
The optimism of some of the Chairs of the Committee notwithstanding, the readers of this Report can see that the Committee is also facing a very large backlog of cases - not as big as the Court itself, but still considerable. Most of the improvement following the Interlaken process will only show up in the course of this year. The Report gives a lot of insight in detailed matters such as which countries abided by the payment deadline for just satisfaction and to what extent. It also shows that of the total sum of just satisfaction awards, 42% was due by Turkey alone. And even more tellingly, that nine countries (out of 47) accounted for 99% of the total!

Monday 18 April 2011

Statistics on States with Systemic or Structural Problems

The secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has just issued an information document entitled 'States with major structural/systemic problems before the
European Court of Human Rights: statistics'
. It contains a host of data on the state of affairs in nine states: Bulgaria, Greece, Italy, Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine. These have in common that they raise a very high number of applications in Strasbourg and that the underlying problems are systemic or structural (which is also reflected in implementation problems). The document includes a range of statistics and information both on the extent of the problems as well as their particular nature per country.

Thursday 14 April 2011

Azerbaijan and the ECHR

Article 19, the human rights NGO defending the freedom of expression across the globe, is ringing the alarm bells about the recent human rights situation in Azerbaijan, a member state of the Council of Europe and a party to the ECHR. Specifically, a recent press release, entitled 'Forgotten Human Rights Crisis Unfolds at Council of Europe’s Doorstep' (within the house rather than at the doorstep, one might add), points the attention at the alarming clampdown on the freedom of expression by the harassment and arrest of many bloggers, journalists, and civil society activists. Some of the key judgments of the European Court of Human Rights concerning the country remain un-implemented, such as in the case of Fatullayev v. Azerbaijan in which the Court ordered - exceptionally - the immediate release of the applicant from prison.

According to Agnès Callamard, director of Article 19:

"The human rights situation in Azerbaijan has reached a critical level. We are receiving almost daily reports of abuse against cyber activists, journalists and others in connection with exercising their rights to freedom of expression and assembly. This raises the question: how many more need to be arrested or beaten before the Council of Europe takes action to hold this Member State accountable? The credibility of the Council of Europe depends on such stewardship."
For an academic analysis of the implementation of the ECHR in the country, one might want to consult the very recent chapter 'The European Convention on Human Rights and Fundamental Freedoms in Azerbaijan', written by Javid Gadirov of Central European University, in the book 'The European Convention on Human Rights and Fundamental Freedoms in Central and Eastern Europe (Edited by Leonard Hammer and Frank Emmert and published by Eleven International Publishing 2011). This is the abstract:

This paper reviews the legal status and implementation of the European Convention on Human Rights and Fundamental Freedoms in the Republic of Azerbaijan. It touches upon such issues as its treatment by the Constitutional Court, constitutional reforms and reactions of the national legal system to the Convention, including some of the most important cases at Strasbourg.

Wednesday 13 April 2011

New Norwegian and Swiss Judges

Yesterday, 12 april, the Parliamentary Assembly of the Ccouncil of Europe elected two new judges to the European Court of Human Rights. In respect of Norway, mr Erik Møse was elected and in respect of Switzerland Ms Helen Keller.

Erik Møse is a Supreme Court Justice in Norway and a human rights expert with a wide international experience. For over ten years (1999-2009) he was judge and even for three years president of the Rwanda Tribunal (ICTR). This might, by the way, strengthen the European Court's expertise on humanitarian and international criminal law - an often criticised 'blind spot' in the Court's case-law. Møse is also very familiar with the Strasbourg system (according to the website of Essex University, to which he is associated) as he was involved in the negotiations leading to Protocols six to eleven of the European Convention on Human Rights. He also pleaded cases before the Court and Commission of Human Rights. Finally, he has been chairman of the Council of Europe’s Steering Committee for Human Rights and the Committee which drafted the European Convention for the Prevention of Torture. He received 93 of a total of 160 votes cast. Møse's term of office will start on 1 September 2011.

Helen Keller is a professor of International Law, Constitutional Law and European Law at the University of Zurich. Her books, which may be familiar to the readers of this blog, are leading in the field and include issues such as the impact of the ECHR on national legal systems and friendly settlements. In addition, as a current member of the United Nation's Human Rights Committee, which supervises state obligations under the ICCPR, she brings in additional expertise about global human rights protection. Her term will start on 4 October 2011.

Two strong additions to the Court, it would seem to me. I wish them both good luck in starting to work in the world's busiest and most active international court!

Friday 8 April 2011

Court's Opinion for the Upcoming Izmir Conference

In the preparations for the upcoming Izmir high level conference in Turkey (under the Turkish chairmanship of the Council of Europe), the European Court of Human Rights has issued an 'Opinion' which reflect its input and views for that meeting. The Izmir conference is following up on last year's conference in Interlaken in Switzerland on the ongoing reforms of the European system of human rights protection. According to the website on the Izmir conference, the conference has three goals in the context of maintaining the momentum for reforms:

"The first is to make a preliminary assessment of the impact of Protocol No. 14. The second is to take stock of what has been achieved by the reform process launched by the Interlaken conference in February 2010 and the third is to reflect upon further ideas for pursuing that reform."
In that context the Court has now made public its views on a range of matters. The Opinion starts with setting out that the reforms of Protocol 14 (which entered into force in 2010) are "encouraging" but will "not provide a lasting and comprehensive solution to the problems facing the Convention system." It re-emphasizes that subsidiarity is a core aspect of human rights protection: first and foremost human rights should be ensured at the national level. But it adds, importantly, that subsidiarity "cannot be unconditional and unilateral". It only works if states do secure rights in practice and offer effective remedies and execute the Court's judgments. The Court refers to this as a shared responsibility for human rights. It also indicates that it exercises ultimate control on whether an applicant's rights have been effectively respected. Here the Court balances on a fine line between Scylla and Charybdis: on the one hand an effective protection on the national level (and thus true subsidiarity) is needed in order for human rights to be protected nationally and in order to avoid a further growth in cases coming to Strasbourg. On the other hand one can clearly read between the lines that the Court is wary of subsidiarity being used by states to weaken the human rights protection system (emphasing national protection while not taking it too seriously).

A second important issue is the Court's own emphasis on its independence as a core principle of the rule of law. No reform must lead to lesser respect for judicial independence. The Court explicitly notes that the proposals for a possible Statute of the Court (which would be easier to change than the Convention itself, but would not be in the Court's own hands as for example its own Rules of Court are). Such a Statute which would deal with procedural issues and would be more flexible than the cumbersome ways of changing the Convention by Protocol (as the very problematic and slow entry into force of Protocol 14 has shown), but it would also potentially strengthen the grip of the Committee of Ministers over the Court. Since there are currently ongoing discussions in a few of the state parties to the ECHR pleading for a more active role of the Committee of Ministers, e.g. by circumscribing even materially the extent of the margin of appreciation or the scope of certain rights, the Court's worries do not fall out of the blue (although that latter discussion is not mentioned in the Court's opinion document). The Court notes that "it has concerns about the direction this initiative is taking and it reiterates its wish to be closely involved in the discussion" - diplomatic language reflecting that the judges are very concerned.

As to ways which have been suggested to avoid nonsensical claims being taken to Strasbourg, it is interesting to note that the Court explicitly opposes the introduction of fees for applicants, both on grounds of principle and because it would add extra administrative burdens. Here the Court thus clearly takes the same view as a consortium of human rights NGOs which are strongly lobbying against such fees. The Court does add that another method, compulsory representation by a lawyer, could be a good alternative. Such a system should be accompanied - and very rightly so, I would add - by appropriate legal aid facilities at the national level. This would be a conditio sine qua non.

Another notable point is that the Court is in principle positive about the option of "advisory opinions" at the request of national courts. Such a procedure would be roughly comparable to the preliminary reference procedure of the Court of Justice of the European Union. The Court thinks this should be further explored and asks to be closely involved in exploring this option. Obviously, as the Court acknowledges, such a procedure would initially mean more work but would in the long run enforce subsidiarity.

At the conference itself the Court will be represented by amongst others its president, who has been given ten minutes speaking time.

I have not yet been able to find an online version of the opinion but will add a link to it as soon as it becomes available.

Wednesday 6 April 2011

New Case Law Fact Sheets

As reported here in October last year, the Court is increasingly making it's case-law accessible by putting thematic electronic factsheets online which summarise the jurisprudence on a particular topic. In 2011 almost twenty new factsheets have been added to the Court's website:

* Child protection
* Data protection
* "Dublin" cases
* Environment
* Expulsions and extraditions
* Extra-territorial jurisdiction
* Freedom of religion
* Homosexual rights (one may assume, by the way, that the Court means homosexuals' rights, as in the rights of homosexuals rather than the rights themselves having a particular orientation (sic!)
* Homosexuality: criminal aspects
* Mental health
* New technologies
* Police arrest / assistance of a lawyer
* Prisoners' right to vote - with info on upcoming cases from Russia, Latvia and yet another one form the UK.
* Racial discrimination
* Right to one's own image
* Roma and Travellers
* Terrorism
* Transsexuals' rights (here the Court does get the spelling right).
* Violence against women - with upcoming cases on genital mutilation form Ireland and Austria.

A valuable starting point both for practitioners, researchers and students - also because some include pending cases and thus offer a preview of the kind of issues that are upcoming in the Court's decisions and judgments.

Tuesday 5 April 2011

Article on Strasbourg and Social Security

Emeritus professor Marc Bossuyt has written the article 'L’extension de la compétence de la Cour de Strasbourg aux prestations sociales : sur l’interprétation de l’article 14 de la Convention combiné avec l’article 1er du Protocole n° 1 dans les affaires Gaygusuz, Koua Poirrez, Stec et autres, Burden et Andrejeva', which appeared in the Revue de Droit Monégasque (n° 10, pp. 91-130, 2008-2009, but just published now). This is the abstract:

This article is the French version of an article published in English in March 2010 (“Should the Strasbourg Court exercise more self-restraint? On the extension of the jurisdiction of the European Court of Human Rights to social security regulations”, Human Rights Law Journal, 31 December 2007, vol. 28, n° 9-12, pp. 321-332). Contrary to this English version, it also contains a summary and comments on the Grand Chamber judgments Burden v. United Kingdom (29 April 2008) and Andrejeva v. Latvia (18 February 2009) on discrimination based on sex or nationality respectively. The author criticizes the extension by the Court of its jurisdiction which will attract an ever increasing number of cases without having the means to deal with them in an appropriate manner. He does not consider it realistic to expect that the European Court of Human Rights will have the capacity to adjudicate within a reasonable time, sometimes as a supreme judge of appeal or cassation for all legal proceedings, and sometimes as a constitutional court for all domestic laws and regulations, and even in response to applications for interim measures, and all this with respect to all individual rights of about 800 million of individuals living, whatever their nationality, in the 47 States parties to the European Convention. In those socio-economic cases, and particularly when the difference of treatment is based on sex (Stec and others and Burden), contrary to differences based on nationality (a ground not even mentioned in article 14 of the Convention), the Court allows the States a “wide margin” of appreciation. The author wonders whether in the future the Court will stick to this prudent approach, which would raise the question whether it was worthwhile to extend the jurisdiction of the Court to the very vast field of socio-economic rights, or whether it is only a formula of style that will not persist once the “dynamic” interpretation of the Court will bring it progressively to engage in an ever more strict control of the infinite variety of distinctions of all kind applied by the States parties in their economic and social legislation.

Monday 4 April 2011

Article on Unlawful Detention of Unauthorised Aliens

Ian Bryan (Lancaster University) and Peter Langford (Edge Hill University) have uploaded the abstract of the following article on SSRN: 'The Unlawful Detention of Unauthorised Aliens Under the European System for the Protection of Human Rights'. It will be published in the upcoming issue of the Nordic Journal of International Law (vol. 80. no. 2, 2011). This is the abstract:

This article evaluates the protections against ‘arbitrary’ and ‘unlawful’ detention afforded to non-nationals on having entered the territory of a State party to the European Convention on Human Rights (ECHR). Focusing on Article 5 ECHR and the various permissible exceptions therein, the article examines leading decisions of the European Court of Human Rights (ECtHR) and, in so doing, illuminates and explores tensions arising from the juncture at which Contracting States’ capacity to detain entry-seeking non-nationals, without criminal charge or trial, intersects with the requisites of Article 5(1)(f ) ECHR, as construed by the ECtHR. It argues that the ECtHR’s interpretative standpoint regarding the ‘lawful’ administrative detention of ‘unauthorised’ non-nationals gives disproportionate preference to Contracting States’ interest in managing migration flows. It also argues that in consequence States’ obligations in international human rights law, the strictures of Article 5 ECHR and the credibility of the Strasbourg Court itself are enfeebled.

Friday 1 April 2011

Court Closes Pilot Procedure on Polish Rent Control Cases

The Court announced today on its website that it has closed one of its earliest pilot judgment procedures, the so-called Polish rent-control cases. This is the press release:

A systemic problem with Poland’s housing legislation has been resolved to the satisfaction of the European Court of Human Rights, which has therefore struck out a case concerning nearly 100 landowners and 24 similar cases and closed its examination of all Polish “rent-control” cases.

It had been estimated that some 100,000 property owners had been affected by the malfunctioning of Polish housing legislation, which meant that landlords could not use their property or charge adequate rent for its lease.

The Court has now decided to close its special procedure for dealing with systemic or structural human rights violations – its “pilot judgment procedure” - which had been applied to these “rent-control” cases.

The Court is satisfied that Poland has changed its laws and procedures such that landlords can now: recover the maintenance costs for their property; include in the rent charged a gradual return for capital investment and make a “decent profit”; and, have a reasonable chance of receiving compensation for past violations of their property rights.

The pilot judgment procedure was applied to the lead rent-control case Hutten-Czapska v. Poland (no. 35014/97) and similar cases were then adjourned. In the principal judgment in Hutten-Czapska, the Grand Chamber (19 June 2006) found that there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, because the applicant could not use her property or charge adequate rent for it lease. The case was finally struck out by the Grand Chamber following a friendly settlement on 28 April 2008, after the Court found that the fundamental problems had been resolved.

In this latest decision, the Court confirms those conclusions and further notes that, following the Hutten-Czapska judgment, a compensation scheme (1) has been introduced in Poland which gives landlords a reasonable chance of receiving compensation for violations of their property rights and serves the same function as an award under Article 41 (just satisfaction) of the Convention. The Court has therefore now struck out the Hutten-Czapska follow-up cases, one brought by 96 property owners, The Assocation of Real Property Owners in Łódź v. Poland (application no. 3485/02), and 24 other cases.

The applicants in The Assocation of Real Property Owners in Łódź had also argued that one of their complaints had still to be resolved; the restrictions on the termination of leases and evictions, particularly concerning the vacation of flats occupied by protected tenants failing to pay rent. They complained that that meant they could neither regain their property for many years, nor recover the rent due from the tenant.

However, the Court reiterated that landlords were now allowed to increase rent to make a “decent profit”. In addition, the Polish State, which inherited from the communist regime an acute shortage of affordable flats for rent, had to balance the exceptionally difficult and socially sensitive issues involved in reconciling the conflicting interests of landlords and tenants. The process of wiping out all the causes and consequences of the violation of the Convention found in the pilot case had necessarily to take place gradually. The process was complex, involving large-scale policy decisions and important changes to Polish legislation, covering housing, social assistance, State subsidies, construction and land administration. Poland could not therefore be censored for maintaining, for the time being, the restrictive rules on the termination of leases. Also, the Polish Supreme Court’s case-law clearly confirmed that landlords were entitled to full compensation for any damage sustained where a municipality failed to provide social accommodation for a tenant.