Thursday 30 June 2011

German Book on Pilot Judgments

A new book (in German) on the topic of pilot judgments has been published. Jörn Eschment has written Musterprozesse vor dem Europäischen Gerichtshof für Menschenrechte. This is the abstract:
Ende 2009 waren beim Europäischen Gerichtshof für Menschenrechte rund 120.000 Beschwerden anhängig. Großen Anteil an dieser Beschwerdeflut haben massenhafte Parallelverfahren, also tatsächlich und/oder rechtlich gleichgelagerte Fälle, die in strukturellen Dysfunktionen der nationalen Rechtsordnungen wurzeln. Als Reaktion auf die zunehmende Arbeitsbelastung durch Parallelverfahren hat der Gerichtshof bereits im Jahr 2004 völker(verfahrens)rechtliches Neuland betreten und erstmals ein Piloturteilsverfahren eingeleitet. Seither haben die Straßburger Richter mehrfach und in verschiedenen Varianten auf diese neue Verfahrensweise zurückgegriffen. Gleichwohl ist deren Entwicklungsstand bis dato allenfalls als embryonal zu bezeichnen. Die Arbeit untersucht Theorie und Praxis solcher Musterverfahren und lotet ihre Probleme und Perspektiven als prozessuale Strategie im Kampf gegen Parallelverfahren aus.
For more on pilot judgments, see also:

* Philip Leach and others, 'Responding to Systemic Human Rights Violations'.
* And my own: 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' on SSRN.

Wednesday 29 June 2011

Article on European Consensus in Public Law

The article 'Does consensus matter? Legitimacy of European Consensus in the Case Law of the ECtHR' by Kanstantsin Dzehtsiarou has just been published in Public Law (July 2011 issue, pp. 534-553). I reported on the working paper earlier here. This is, in short, what the article is about:

International tribunals including the European Court of Human Rights (“ECtHR”) face a substantial structural handicap: they operate in a system which lacks the coercive force to enforce their judgments. Thus, to at least some extent, the execution of their judgments depends on them issuing rulings that are considered legitimate by reference to the method of their reasoning. One of the methods of reasoning commonly applied by the ECtHR is that of “European consensus”; an argument based on comparative analysis. While “European consensus” is used by the court, the Convention itself does not contain any definition, criteria or regulation of the concept. Moreover, the ECtHR has not clearly defined what it means by European consensus and it has not been analysed systematically in academic work.

This paper argues that European consensus as employed by the ECtHR is a legitimising tool, but that its potential can be unlocked only if the court clearly states its meaning and application. It is a legitimising method of reasoning because it brings clarity and foreseeability to case law in relation to almost all Convention rights, although it has never been the sole basis of a judgment and therefore plays a subsidiary, albeit important, legitimising role.

Part one considers the general framework for the analysis of legitimacy. It addresses general concepts of legitimacy and considers the factors that are relevant in the assessment of the legitimacy of an argument the ECtHR incorporates in its reasoning. It is suggested that European consensus should be sufficiently persuasive and procedurally clear if it is to enhance legitimacy. Part two deals with the crisis of legitimacy relative to European consensus that has been articulated by some
commentators. It identifies those weak points that can be mitigated through clarity and transparency of the court's reasoning. Part three defines the European consensus as it is used by the European Court. The logic that is used by the court in identification of consensus is used by national and international tribunals all over the World. This part outlines and analyses the different types of consensus considered by the ECtHR.

Tuesday 28 June 2011

PACE Calls for More Active Role of National Parliaments

The implementation gap between standards and practice is a recurring issue - and rightly so - in discussions on human rights, also in the context of the ECHR. One way to increase correct and more speedy implementation is to activate national parliaments. This is what the Parliamentary Assembly (composed of national parliamentarians) emphasized in a resolution (no. 1823) adopted last week, entitled 'National parliaments: guarantors of human rights in Europe'. This is the text of the resolution:

1. The Parliamentary Assembly recalls that Council of Europe member states are responsible for the effective implementation of international human rights norms they have signed up to, in particular those of the European Convention on Human Rights (ETS No. 5) (hereafter "the Convention"). This obligation concerns all state organs, whether executive, judicial or legislative.

2. National parliaments are often overlooked in this context. Their potential needs to be further explored. They are key to the effective implementation of international human rights norms at national level and fulfil their duty to protect human rights through legislating (including the vetting of draft legislation), involvement in the ratification of international human rights treaties, holding the executive to account, liaising with national human rights institutions and fostering the creation of a pervasive human rights culture.

3. The members of the Assembly, having a double mandate – as members of the Assembly and of their respective national parliaments – are under a particular duty to contribute to such action.

4. The Assembly notes that the United Nations “Paris Principles” of 1993 have become the internationally accepted benchmark for core minimum standards for the role and functioning of independent national human rights institutions; similar benchmarks should be drawn up for parliamentary bodies.

5. With respect to the implementation of judgments of the European Court of Human Rights (hereafter "the Court"), the Assembly:

5.1. believes that national parliaments are uniquely placed to hold the governments to account for swift and effective implementation of the Court’s judgments, as well as to swiftly adopt the necessary legislative amendments;

5.2. regrets that the post-Interlaken debate on the future of the Convention system does not sufficiently take into account the potentially important role of parliaments and deplores the silence of the Izmir Declaration in this respect;

5.3. points to the positive examples in several member states, notably the United Kingdom, the Netherlands, Germany, Finland and Romania, which have set up parliamentary structures to monitor the implementation of the Court’s judgments.

6. Furthermore, the Assembly:

6.1. encourages parliamentarians to monitor the determination and enforcement of human rights standards by the domestic judicial and administrative authorities;

6.2. urges parliamentarians to exercise their responsibility to carefully scrutinise the executive in their countries when it comes to the implementation of, in particular, international human rights norms;

6.3. calls on governments to involve national parliaments in the negotiation process of international human rights agreements and in the process of implementation of judgements of the European Court of Human Rights;

6.4. calls on all member states to provide for adequate parliamentary procedures to systematically verify the compatibility of draft legislation with Convention standards and avoid future violations of the Convention, including regular monitoring of all judgments which could potentially affect the respective legal orders;

6.5. urges parliaments to step up their efforts in contributing to the supervision of the Court’s judgments by overseeing steps taken by the competent authorities to execute adverse judgments, including scrutiny of the actual measures taken;

6.6. calls on parliaments to set up and/or to reinforce structures that would permit the mainstreaming and rigorous supervision of their international human rights obligations, on the basis of the principles below.

7. The Assembly therefore invites parliaments to implement the following basic principles for parliamentary supervision of international human rights standards.

Basic principles for parliamentary supervision of international human rights standards

1. Appropriate framework and responsibilities

National parliaments shall establish appropriate parliamentary structures to ensure rigorous and regular monitoring of compliance with and supervision of international human rights obligations, such as dedicated human rights committees or appropriate analogous structures, whose remits shall be clearly defined and enshrined in law.

These remits should include, inter alia:

– the systematic verification of the compatibility of draft legislation with international human rights obligations;

– the requirement for governments to regularly submit reports on relevant judgments of the European Court of Human Rights and their implementation;

– the initiation of legislative proposals and amendments to laws;

– subpoena powers over witnesses and documents concerning their remit;

Such committees shall have the responsibility to ensure that parliaments are properly advised and informed on human rights issues. Human rights training should also be provided for parliamentarians and their staff;

2. Independent advice

Human rights committees or appropriate analogous structures shall have access to independent expertise in human rights law.

Adequate resources shall also be made available to provide specialised secretariat support.

3. Co-operation with other institutions and civil society

Co-operation and regular dialogue shall be maintained, as appropriate, with relevant national (for example, national human rights institutions, parliamentary commissioners), and international bodies (for example, the Parliamentary Assembly, the Council of Europe Commissioner for Human Rights, European and other international human rights monitoring bodies), as well as with representatives of well-established non-governmental organisations which have significant and relevant experience.

Monday 27 June 2011

New French Judge Elected

Last week, the Parliamentary Assembly of the Council of Europe elected a new judge in the Court in respect of France: Mr André Potocki. Potocki received 110 out of 160 votes cast. He will succeed judge Costa, the current judge elected in respect of France, on 4 November 2011. Potocki has been elected for a term of nine years. Who will succeed Costa as president of the Court is, to my knowledge, not yet known.

Potocki, born in 1950, is currently a judge at the French Court of Cassation (in the commercial section!). He was also, shortly, a judge at the Court of First Instance of the European Communities. The expertise gained in the latter function may be very useful in the context of the pending accession of the European Union to the ECHR. His particular expertise in human rights is fairly limited. The CV only indicates that he was a member of the French committee re-examining a criminal decision further to a judgment of the European Court of Human Rights. For his full CV, see here.

The three French candidates were selected by a national committee following an open call for applications - a method which an increassing number of ECHR state parties have opted for in the past few years.

Monday 20 June 2011

The Convention: a Beanstalk or a Tree?

Baroness Hale of Richmond, justice at the Supreme Court of the United Kingdom, delivered a lecture last Thursday with the intriguing title 'Beanstalk or Living Instrument? How Tall Can the ECHR Grow?'. It is a nuanced call to the European Court of Human Rights to be prudent: to avoid the ECHR to be turned into an ever-growing beanstalk - as in the fairy tale. In the lecture, baroness Hale deals with the various ways in which the living instrument doctrine has taken shape over the years and connects this to the issues national courts have to deal with. Rather than a beanstalk, she argues that the Convention should better be compared to a tree: grwoing but simultaneously rooted in a sufficient degree of predictability. She ends with a cautionary note:

As a supporter of the Convention and the work of the Strasbourg Court, my plea to them is to accept that there are some natural limits to the growth and development of the living tree. Otherwise I have a fear that their judgments, and those of the national courts which follow them, will increasingly be defied by our governments and Parliaments. This is a very rare phenomenon at present and long may it remain so.
See also the coverage and comments at the UK Human Rights Blog.

Hat tip to EM!

Thursday 16 June 2011

EU Accession to the ECHR and the Election of Judges

With the accession of the European Union to the ECHR on the horizon, negotiations are ongoing on several levels. One technical issue which needs to be worked out is how the EU wil be involved in the election of judges to the ECHR. Judges, under Article 22 ECHR, are elected by the Parliamentary Assembly of the Council of Europe (CoE). This is a body with parliamentarians from all CoE member states. Since the EU will not join the Council of Europe organization as a member, a special solution needs to be found for involvement of parliamentarians representing the EU in the process to select judges. This is currently under negotiation between Pace and the European Parliament. As a press release of this week indicates, agreement has been reached on some of the key points. The official text of the agreement is not yet finally drafted or public, but the press release includes the basics:

Statement by co-chairs of PACE-European Parliament joint informal body
The election of judges to the European Court of Human Rights following the EU’s accession to the European Convention on Human Rights: statement by co-chairs of PACE-European Parliament informal body

The co-chairpersons of the Parliamentary Assembly-European Parliament joint informal body, Christos Pourgourides (Cyprus, EPP/CD), Chairperson of the Assembly’s Committee on Legal Affairs and Human Rights, and Carlo Casini (Italy, EPP), Chairperson of the European Parliament’s Committee on Constitutional Affairs, issued the following statement at the end of the body’s meeting held in Paris on 15 June 2011:

"There was agreement that, following accession of the European Union to the European Convention on Human Rights, the European Parliament will be entitled to participate in the sittings of the Parliamentary Assembly of the Council of Europe and its relevant bodies when the latter exercises its functions related to the election of judges to the European Court of Human Rights, under Article 22 of the Convention.

There was further agreement that a European Parliament delegation, of a size equal to that of the biggest national parliamentary delegations, will participate in the election of judges by the Parliamentary Assembly. In particular, agreement has been reached as to the manner in which representatives of the European Parliament will take part and vote within the Assembly’s different bodies in the election process.

These arrangements must now be approved by the Parliamentary Assembly and the European Parliament, in accordance with their respective procedures.”

Wednesday 15 June 2011

Op-Eds on the Court

Colm O'Cinneide has posted an insightful blog article about the recent controversies in the United Kingdom about the Court on the UK Constitutional Law Group Blog, entitled 'In Defence of the Strasbourg Court'. And yesterday, the online version of the Guardian newspaper published my own Op-Ed on the European Court, which I am reposting here:

Is the European court of human rights (ECHR) a dangerous monster, constantly eyeing an endangered prey called national sovereignty? Or is it rather a beloved, benign and not particularly powerful protector of human rights? Anyone following the debates in the press and in parliament in the United Kingdom and in other European countries may get the impression that the court in Strasbourg is increasingly under attack.

Disputes over voting rights for prisoners, crucifixes in classrooms and abortion rights have all made the headlines recently. Is there reason for concern that the European court is nibbling away at the power of states to decide over their own future?

Observers of the Strasbourg court might wonder why, of all possible international organisations, the ECHR is deemed to be particularly threatening. Was it not set up for the good of all of Europe's citizens? Is it not the paramount shield of protection of all those whose fundamental rights are at risk? Such assurances will not placate the court's critics. However, two recent studies shed light on both the influence and the legitimacy of the court.

Research by US-based academics Laurence Helfer and Erik Voeten have addressed the first issue: influence. Does an international court such as the ECHR really influence national policies or does its jurisprudence merely reflect existing trends? Put differently, is it a follower of national legal changes rather than a trendsetter? Through a statistical analysis of one particular field of law – judgments on lesbian, gay, bisexual and transgender (LGBT) rights – they have found that there is evidence that Strasbourg judgments can help to push for changes at a national level.

If national constitutions allow for it, domestic judges can use ECHR case law in their own judgments to rule that specific national laws should no longer apply – for example, laws criminalising homosexual behaviour. The judgments of the European court can also provide information and encourage mobilisation domestically. Once the court issues a judgment, national NGOs can use that judgment to lobby their government for policy changes. If the European court rules that transsexuals have a right to have their gender change acknowledged on their birth certificates, for example, such a verdict gives credence and strength to a national lobby to effect such a change.

The ability of domestic judges to do this and the existence, will and effectiveness of lobby groups are national features rather than characteristics of the European court. It seems, therefore, that the jurisprudence of the ECHR is a catalyst increasing the speed of existing movements for change rather than igniting those changes. Instead of looking at the court as a danger, critics should look inward at the national constitutional system and existing movements and moods in their society.

What then about the legitimacy of the court? Do Europeans consider the Strasbourg institution to be a credible and legitimate protector of human rights? Is it eroding under the pressure of harsh discussions in some countries? Political scientist Başak Çalı and a team of researchers from University College London interviewed a large number of judges, lawyers and politicians in the UK, Ireland, Germany, Turkey and Bulgaria. They found that, in spite of some criticism, the ECHR generally enjoys a very high degree of legitimacy. In fact, judicial respect for the jurisprudence of the Strasbourg court is so strong that even the unpopularity of some of judgments does not significantly erode it. These academic projects show that the often hot-tempered political debates about the court and its judgments do not tell the full story.

Tuesday 14 June 2011

Paper on ECHR and Extraterritoriality

Barbara Miltner of the University of Cambridge has published a paper on Bepress on the extraterritorial application of the ECHR. It is entitled 'Revisiting Extraterritoriality: the ECHR and its Lessons' and connects the scope of the ECHR in Article 1 to the so-called 'colonial clause'. This is the abstract:

The extraterritorial scope of international human rights treaties has prompted vigorous debate in recent years. Much of this debate has focused on earlier developments in the European Court of Human Rights as well as the comparative jurisprudence of other international human rights treaties, with a particular focus on the concept of jurisdiction. This article refocuses the inquiry from a broad-spectrum comparative approach to an in-depth case study examining the complex interplay of factors influencing the extraterritorial application of the European Convention on Human Rights. While prior articles have focused nearly exclusively on its general jurisdiction clause, this paper recognises the equally significant contribution of a second, poorly understood treaty provision about which very little has been written. It goes on to examine the historical context and drafting history of these two key provisions prior to tracing what can be termed their irreconcilable jurisprudential evolution. What it reveals is a complex interaction between two provisions that defies facile characterization and militates against a one-size-fits all approach across human rights treaties.
Note that the paper still has a lot of track changes in it - hopefully that can be changed by the author soon in order to make the reading easier.

Friday 10 June 2011

Loucaides on Cyprus

Loukis Loucaides, former judge at the European Court of Human Rights, has written a short article about the Cypriotic case-law of the Court in the most recent issue of the Leiden Journal of International Law (vol. 24-2, 2011) pp. 435-465. The title of the article is 'Is the European Court of Human Rights Still a Principled Court of Human Rights After the Demopoulos Case?'. This is the abstract:

On 10 May 2001, the European Court of Human Rights delivered its judgment in the case of Cyprus v. Turkey pronouncing on the legal consequences of Turkey's invasion and occupation of the northern part of Cyprus since 1974. The Court found Turkey responsible for continuing violations of the right to the home and property of Greek-Cypriots. Invoking the Namibia principle, the Court found that remedies in the occupied part of Cyprus may be regarded as domestic remedies of Turkey and that the question of their effectiveness was to be considered in the specific circumstances in which it arises. On 1 March 2010, the Court decided that a Commission in the occupied area was a remedy that should be exhausted by the complainants for the above violations. Significant legal questions were determined relating to the effectiveness of this remedy with far-reaching consequences concerning the right to home and property as well as other aspects of human rights and international law.

Tuesday 7 June 2011

Article 6 and Reasoned Verdicts

The role of juries in criminal trials is probably one of the aspects which most facinates the general public. But how do jury decisions square with a defendant's wish to know on which grounds and considerations he or she has been found guilty? It is a recurring issue, which resurfaced in the case of Taxquet v Belgium last year. Paul Roberts of the University of Nottingham has addressed this topic in an article entitled 'Does Article 6 of the European Convention on Human Rights Require Reasoned Verdicts in Criminal Trials?', published in the latest issue of the Human Rights Law Review (Vol. 11, No. 2, 2011). This is the abstract:

This article revisits the controversial question whether Article 6 of the European Convention on Human Rights requires juries to give reasoned verdicts in criminal trials, in the light of the recent decision of the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium (2010). On the face of it, Taxquet reiterates the orthodox position elucidated in previous Strasbourg jurisprudence: the traditional common law jury delivering unreasoned general verdicts is in principle compatible with the right to a fair trial guaranteed by Article 6. On closer examination, however, the Grand Chamber's Judgment contains remarks and suggestions that could be construed as more threatening to the long-term future of the common law jury as it currently exists in the United Kingdom and in other Council of Europe member states. This realisation prompts broader critical reflections on: the authority and competence of the European Court of Human Rights; alternative approaches to interpreting Strasbourg jurisprudence and mediating its impact on domestic law; and the rationality and legitimacy of unreasoned jury verdicts in criminal adjudication.