Thursday 29 March 2012

Committee of Ministers Adopts Guidelines on Selecting European Court Judges

Yesterday, the Committee of Ministers of the Council of Europe adopted Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights. The guidelines address the first step in electing judges: the national selection procedures. Earlier, in 2010, the Committee already established an advisory panel of experts on candidates for the election as judge to the European Court of Human Rights. It is notable that the Committee of Ministers follows the Parliamentary Assembly in the very debated issue of whether submitted lists of three candidates should include candidates of both sexes. The Guidelines state the following about this:
Lists of candidates should as a general rule contain at least one candidate of each sex, unless the sex of the candidates on the list is under-represented on the Court (under 40% of judges) or if exceptional circumstances exist to derogate from this rule.
According to the Parliamentary Assembly such circumstances exist when "a Contracting Party has taken all the necessary and
appropriate steps to ensure that the list contains candidates of both sexes meeting the requirements of Article 21 § 1 of the European Convention on Human Rights." Considering that the election of the Maltese judge was stalled for years because only lists of men were submitted, the issue had become very thorny. But with this "exceptional circumstances"-clause, it was possible even recently that for example Belgium submitted a list of three men which was accepted by the Assembly. It is difficult to understand why, however. Currently, there are 19 female judges out of 47 in total: that is 40%, but why stop there? Secondly, in a country like Belgium with so many ECHR specialists, female and male, it seems unthinkable that all steps were taken to find suitable female candidates. Among the current three male candidates there are certainly very expert and very suitable candidates, but that still does not explain why the list contains only men. The three candidates were interviewed a few weeks ago and elections on the new Belgian judge will take place next month.

The explanatory memorandum to the Guidelines can be found here.

Paper on Reparations in Torture Cases in Strasbourg

Professor Bill Bowring of Birbeck College of the University of London has posted a working paper on SSRN on Strasbourg's practice of reparations in torture cases. It is entitled 'What Reparation Does a Torture Survivor Obtain from International Litigation? Critical Reflections on Practice at the Strasbourg Court'. This is the abstract:

Although the Strasbourg Court is primarily a mechanism for the protection of individual human rights, many of the leading cases on violation of Article 3 have a collective or a structural dimension. This is of great importance for the CAT definition of torture, which is that torture must have a purpose. Thus, the author’s experience of many Kurdish and Chechen complaints against Turkey and Russia respectively have to do the consequences of self-determination struggles and repressive state responses. Or, as in many of the Russian cases concerning Article 3, the structural problems of the Russian penitentiary system, in which the officers, mostly ex-military, see the prisoners as the enemy. A successful claimant at Strasbourg in most cases obtains a declaration that a violation has been committed by the government, and a sum of money in “just satisfaction”. Compared with the practice of the Inter-American Court, this is minimalist. The enforcement procedure through the Committee of Ministers, for general measures, is opaque and slow. The question remains: why do it?

Tuesday 27 March 2012

Part of FIDE 2012 Dedicated to EU - ECHR Relationship

From May 30 to June 2, 2012 Tallinn will be the host city of the Congress of the International Federation of European Law (FIDE). This will be the 25th time that the biennial FIDE Congress is serving as a common forum for European legal scholars and practitioners to address current issues of interest in European Union law and its interaction with national law:

FIDE (Fédération Internationale pour le Droit Européen, the International Federation for European Law) focuses on research and analysis of European Union law and EU institutions, and their interaction with the legal systems of the member states. FIDE unites the national associations for European law of all EU member states and candidate countries, as well as Norway and Switzerland. It provides legal scholars and practitioners with a common forum to address current issues of interest in European law and in the interaction between EU and national law.

The Congress is expected to attract some 500 lawyers from across Europe and beyond, including the President of the Court of Justice of the European Union. The Congress lasts three days and the working languages are English, French and German.
One of the three main topics of the 25th FIDE Congress is:

1. Protection of Fundamental Rights Post-Lisbon: The Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights (ECHR) and National Constitutions.

General rapporteur: Prof. Leonard Besselink, University of Utrecht
More information can be found on the website of FIDE.

Monday 26 March 2012

Dutch Supreme Court President's Views on the European Court

Earlier this month, the President of the Dutch Supreme Court (Hoge Raad), Geert Corstens, and one of his staff, Reindert Kuiper, published their views on the problems the European Court is facing in a short article in the Dutch review of jurists (Nederlands Juristenblad). I am reproducing the English translation of it here:

Help! The European Court of Human Rights is drowning!
Geert Corstens and Reindert Kuiper
The title of this article is a cry for help: no other opening would do justice to the scale and urgency of the caseload problem facing the European Court of Human Rights. A huge backlog of over 150,000 cases awaits a decision in Strasbourg. We need both constructive solutions and the political will to put them into effect, even if it means extra expenditure.

The Court is too important to fail, as can be seen from the survey of its case law in its annual report. This summarises judgments in a few sentences, but its cross-section of the Court’s case law makes one thing crystal clear: serious human rights violations are still commonplace and are not adequately remedied in national legal systems. Addressing this fundamental failure on the part of the member states of the Council of Europe should be a top priority. The inescapable conclusion is that legal protection for individuals, as afforded by the Court, is essential.

Of course, the problem of the caseload did not appear out of the blue. The President of the Court has spoken of ‘the inevitable consequence of the enlargement of the Council of Europe to include post-communist states as they embraced democracy’. So the big question is: what are the member states prepared to do to keep their promise to respect the human rights of their peoples?

The worrying thing is that just when the Court needs all the support it can get, a public debate is under way that connects the caseload with what some people regard as too broad an interpretation of some of the rights enshrined in the Convention. Of course, the latter issue should be debated too. Criticisms have been voiced in the Netherlands and elsewhere of parts of the Court’s case law, and sometimes with good reason. But the two issues should not be conflated. If they are, people soon get the impression that the excessive caseload is the Court’s own fault.

A government’s willingness to help solve the caseload problem must never depend on any undertaking by the Court to interpret the Convention to that government’s liking. If there is one area where the saying ‘he who pays the piper calls the tune’ can never apply, either in theory or in practice, it is in the administration of justice. In that sense Montesquieu’s doctrine of the separation of powers is not one jot out of date.

What is more, separating the debate about the Court’s caseload from the debate on its interpretation of Convention rights allows us to address the real issue. In fact, most of the cases currently before the Court do not stem from controversial judgments. Even the most outspoken critics will acknowledge as much. So where should we seek the solution to the caseload problem?

Number of incoming cases – capacity to handle cases ≤ 0: the formula for a healthy Court of Human Rights is simple. But that goal has still not been reached, even now that the 14th Protocol has entered into force. Although, the capacity to handle cases has increased sharply as a result, it is still not enough to deal with the influx. Last year, the Court disposed of 52,188 cases. However, 64,500 new applications were lodged. At present, the main problem is not the mass of applications that are manifestly ill-founded or inadmissible. They can be disposed of in a single-judge formation, at little cost in terms of the judges’ time. The real problem lies in the cases where a violation of human rights may actually have taken place. The intractability of this problem is reflected in the statistics. Of the cases disposed of last year, 50,677 were either declared inadmissible or were struck out of the list of cases; 1,157 required a substantive decision.

These figures, and the knowledge that some 30,000 of the 150,000 cases currently pending will require a substantive decision, force us once more to face up to the need for a speedy solution. The figures show that the member states are not adequately discharging their responsibilities under the Convention. This is particularly obvious in regard to ‘repetitive cases’, where decisions given previously are repeated because member states have not taken the appropriate action. Such cases should simply not come before the Court. The Strasbourg system stands or falls by the member states’ compliance with the Convention. If they fail to discharge their responsibilities, if they delay amending their legislation in accordance with a Court judgment, the Court will inevitably be swamped by a deluge of applications.

To remind you of the figures: 30,000 cases require a substantive decision and there is capacity to dispose of only 1,500 cases annually. The Convention system will collapse if justified applications have to wait over ten years for a decision. Academics, politicians and legal practitioners must pool their resources. Fortunately, awareness of this need is growing. We should like to draw attention to an initiative launched by Professors Janneke Gerards and Ashley Terlouw. March 2012 saw the publication of Amici Curiae, a volume edited by them in which over 30 experts in the field, including practitioners, turn their minds to devising possible solutions. The editors hope that this volume will stimulate a constructive debate on the problems facing the Court. We invite the readers of this article to contribute their suggestions too: the more good ideas the better.

We have not yet seen the contributions of the other writers. So we shall confine ourselves to some of the proposals put forward in our own contribution to the volume. We believe that both short- and long-term measures are required. In the short term, the member states should make a large number of highly qualified jurists available to the Court on a temporary basis, to eliminate the backlog. If the Court is to function effectively in the long term, it must be made easier for it to change its own procedures. In addition, legal representation for applicants during the proceedings should be made compulsory, legal representatives should be required to specialise, and a quota system should be introduced for the number of applications that can be submitted by the bar of a particular country. In this way, national bars would share responsibility for Strasbourg’s caseload. Of course, this will only be possible in countries that have an independent bar and a proper system of subsidised legal aid. The most important thing, however, is for the member states to do far more to bring their legal systems into line with the Convention, and to hold one another to account if they fail to do so. One option would be a fine mechanism, which would forge a link between the funding of the Court and the use of the right of individual petition.

We knew that the enlargement of the Council of Europe would create problems for the Court. Now it is time for academics, politicians and legal practitioners to join forces and devote their energies to tackling these problems. And even in these hard times we must never be prepared to reduce the safeguards the Court provides. Surely we are prepared to spend more than €0.08 per person per year to protect human rights?

Friday 23 March 2012

Guest Post on Austin and Others Grand Chamber Judgment on 'Kettling'

Last week was a week full of important judgments from the European Court. One of the main Grand Chamber judgments concerned a demonstrator and some passers-by who were held in a police cordon for several hours during a protest against globalisation in London: Austin and Others v. the United Kingdom. For a web interview about the case with Claire Ovey from the registry of the Court, click here. For the hearing in the case, click here.

My good friend Michael Hamilton, associate professor at Central European University and an expert on the freedom of assembly, has been so kind to write an assessment of the judgment. Thank you, Michael! I reproduce it here in full:

‘Kettling’ and Article 5(1) ECHR: Austin and Others v UK (2012)
Last week, the Court’s Grand Chamber delivered the eagerly anticipated judgment in the case of Austin and Others v UK. The 14-3 majority ruling held that police tactics used during the 2001 May Day protests in London, relying on common law powers to prevent a breach of the peace and confining both demonstrators and passersby behind a police cordon for approximately seven hours, did not violate Article 5 ECHR. This post suggests that the Court’s reasoning betrays the internal integrity of Article 5 and takes insufficient account of the expressive purpose which partially defined the May Day events.

Article 5 entails what appears to be a simple two-stage test – (1) is there an interference constituting a ‘deprivation of liberty’ (the threshold question)? If this threshold is met, and Article 5 thus engaged – (2), is the deprivation justified under one of the six categories in subparagraphs (a)-(f), and ‘in accordance with a procedure prescribed by law’? The two limbs of this test were answered differently in the lengthy judgments of the High Court, Court of Appeal and House of Lords (see the related commentaries by David Mead, Helen Fenwick, David Feldman, and Genevieve Lennon).

The Grand Chamber hints (as did Lord Neuberger in the House of Lords) that the application of this test is complicated because the ‘kettling’ of demonstrators is a ‘non-paradigm’ interference with individual liberty – the cordoning of protesters falls short of arrest and confinement in a prison cell. Thus, while the Court has previously found violations of Article 5 in protest cases (see, for example, Steel and Others v UK (1998) and most recently, Schwabe and MG v Germany (2011)), these cases involved more typical detention scenarios. Schwabe, for example, concerned the arrest and detention of two demonstrators for five and a half days in anticipation of the G8 summit protests in Rostock, June 2007. The Court made it clear that such preventive detention, where there is no evidence of an intention to commit specific and imminent unlawful acts, constitutes a violation of Article 5(1) notwithstanding the sizable challenges of guaranteeing security at the G8 summit. Parallels can also be drawn between the ‘kettling’ in Austin and the police measures used in the UK case of R (on the application of Laporte) v Chief Constable of Gloucestershire (2006) where anti-war demonstrators were detained on a coach for several hours after police prevented them from reaching the site of their intended protest. However, the celebrated House of Lords judgment in Laporte does not decide the Article 5 question given their Lordships’ conclusion that the invocation of common law powers to prevent a non-imminent breach of the peace could not be regarded as ‘prescribed by law’ under Article 11(2). The same is true of the Strasbourg Court’s judgment in Gillan and Quinton v UK (2010) concerning the police use of stop and search powers. Here, the Court considered it unnecessary to determine the Article 5 issue since it found a violation of Article 8 of the Convention (see further the joint dissenting opinion in Austin at para. 13).

The Austin judgment is the Strasbourg Court’s first foray into the specific practice of ‘kettling’. In applying the initial limb of the Article 5 test, the Court has to decide what factors are admissible when determining whether a ‘deprivation of liberty’ has occurred. The Court in Austin repeated the long-established test (from Engel and others v the Netherlands (1976) and Guzzardi v Italy (1980)) that:

‘In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.’ (para. 57)
Significantly though, to this list of criteria, the Court in Austin added ‘context’. The Court stated:

‘… the requirement to take account of the “type” and “manner of implementation” of the measure in question enables [the Court] to have regard to the specific context and circumstances surrounding types of restriction.’ (para. 59)
It is suggested here that several inter-related problems arise from making an assessment of ‘context’ relevant to this threshold question of Article 5. The first is that such reasoning clearly allows public interest considerations in by the backdoor. Revealingly, the Court goes on to explain that ‘the context … is an important factor … since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good’ (para. 59). This is seemingly at odds with the Court’s avowal in the preceding paragraph that ‘an underlying public interest motive … has no bearing on the question whether that person has been deprived of his liberty’ (para. 58). More on these so-called ‘analogous’ and ‘commonly occurring situations’ later.

One might also note here that the way in which ‘context’ is viewed will often determine (and so be indistinguishable from) the purported ‘purpose’ of the police intervention (the factor that so occupied Lord Hope in the House of Lords, see paras. 22 and 34 of that judgment).

In this light, it is worth closely examining what particular circumstances are given weight by the Strasbourg Court at this stage in the reasoning. Despite first suggesting that ‘the coercive nature of the containment … its duration, and its effect on the applicants, in terms of physical discomfort and inability to leave … point towards a deprivation of liberty’ (para. 64), the Court then highlights the size of the crowd, the ‘volatile and dangerous conditions’, and the purported lack of any alternative policing measure capable of averting serious injury or damage, to support the trial judge’s conclusion that ‘kettling’ was indeed ‘the least intrusive and most effective means to be applied’ (para. 66). Arguably, the question of duration is negated by the Court’s assertion that it was ‘unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty.’ While there are obvious limits to the degree of specificity or prescription we ought to expect from a judgment of the Court on questions of timing (cf. the dissenting opinion in Nurettin Aldemir and Others v Turkey (2007)), and this is not to suggest that duration of itself should be dispositive, the Court should not be so easily released from its responsibility to assess when a mere restriction becomes a deprivation (see similarly the joint dissenting opinion at para. 12).

Other arguments raised elsewhere in the Court’s judgment also highlight the potential for an expansive – and police oriented – view of ‘contextual’ factors. The Court noted the state’s positive obligations to protect the rights under Articles 2 and 3 ECHR (paras. 56), as well as ‘the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources’ (para. 55 – a phrasing common in other Strasbourg judgments concerning police positive obligations). Could questions of police resources therefore be regarded as germane (as a contextual matter) to the question of whether a deprivation of liberty has occurred?

Moreover, the Court also states that it does not wish to constrain the operational discretion of the police, especially because they ‘have access to information and intelligence not available to the general public’ (para. 56). Surely, though, to correlate the degree of deference due in operational decisions with the intelligence exclusively possessed by the police could potentially justify more intrusive forms of police intelligence gathering – just at the time when the role of undercover policing and infiltration of protest groups in the UK has deservedly come under the spotlight (see also R v Barkshire and others (2011)). It is important in this regard to recall an earlier judgment of the House of Lords – Tweed v Parades Commission for Northern Ireland (2006) – which held that disclosure of police reports (or at least an accurate summary of the information contained therein) might be necessary in order for a court to properly assess the proportionality of restrictions on freedom of assembly. Surely the same argument also applies in relation to judicial scrutiny of police contingency planning as relevant to the inquiry under Article 5(1). On this question, Keir Starmer QC – who originally acted on behalf of the claimants in the Austin case was critical of ‘the “lack of an audit trail” showing the consideration of alternative plans being considered during the [police] planning and training” for May Day 2001.’

To return to the so-called ‘analogous’ or ‘commonly occurring situations’ with which the facts of Austin were compared, the Court argued that mere restrictions on liberty could not be regarded as deprivations of the same so long as they were ‘rendered unavoidable as a result of circumstances beyond the control of the authorities’, were ‘necessary to avert a real risk of serious injury or damage’, and were ‘kept to the minimum required for that purpose’ (para. 59). In making this argument, the Court had in mind the examples cited previously by the Court of Appeal and House of Lords – namely, measures taken to separate rival football crowds and measures hemming in motorists in the aftermath of a traffic accident. First of all, as David Mead argues in another blog posting on the Strasbourg judgment in Austin, these cases are not really analogous at all. Why so? It is suggested here that what really differentiates Austin from these so-called analogous cases is the fact that neither football crowds nor delayed motorists involve gatherings assembled primarily for an expressive purpose on matters of public interest. In Austin – even though some of those caught behind the police cordon were not themselves demonstrators (a factor that was evaluated differently by the majority (at para.63), and the dissenting Judges (at para.11)) – the context, if at all relevant to the threshold question in Article 5(1), was surely partially defined by the need also to ensure the practical and effective protection of the rights of speech and assembly. This ‘contextual’ factor could have been given greater weight (even though no separate complaint under Articles 10 or 11 was being considered in Austin). Such an approach would not only be consistent with reading the Convention as a whole and promoting internal consistency between its provisions (para.54), but would have been more compelling than the rather dubious argument about the implied consent of those detained (an argument with which Lord Neuberger flirted in the House of Lords judgment at para.61) or the assertion that such circumstances are ‘unavoidable’ and ‘beyond the control of the authorities’ (since this is a dangerously elastic concept, devoid of practical application). Such an approach, emphasizing the contextual importance of freedom of speech and assembly, might also have given greater bite to the Court’s rather limp concession that ‘[i]t cannot be excluded that the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5(1)’ (para. 60).

In a similar vein (relating to the internal consistency of the Convention), the Court did stress (at para. 55) ‘the importance and purport of the distinct provisions of Article 5 and of Article 2 of Protocol No. 4’, and also reflected on the fact that ‘Article 5 should not, in principle, be interpreted in such a way as to incorporate the requirements of Protocol No. 4 in respect of States which have not ratified it’ (the UK being one of only four Council of Europe member states not yet to have ratified Protocol 4). The Court, however, did not return to this point even though the spectrum between deprivations under Article 5 and mere restrictions under Article 2 of Protocol 4 offers a straightforward and arguably more persuasive way of evading the clutches of Article 5 whilst also unambiguously casting ‘kettling’ as a strategy ordinarily requiring justification under Article 2(3) of Protocol 4 (in countries where that Protocol has been ratified).

The Court’s concession that ‘kettling’ might, on different facts, give rise to an unjustified deprivation of liberty also requires us to consider the second limb of the test in Article 5(1). If a ‘kettling’ case arose in which Article 5 was actually engaged, it would be virtually impossible for the authorities to argue that it was justified under any of the existing subparagraphs (a)-(f) – particularly since the Court has repeatedly stressed that these exceptions are exhaustive (see, for example, Austin, para.60, and Schwabe, para.69). It is important to remember that unlike the limiting clauses in Article 11 or Article 2 of Protocol 4, there is no ‘exception’ under Article 5(1) for security measures or public order considerations. On this basis, no other purposes (however well-intentioned) or extraneous factors (such as public order) can justify what has already been decided, under the first limb of the test, to be a deprivation of liberty. Arguably, the admission of ‘contextual’ factors as elaborated by the Court in Austin serves to introduce a de facto exception to Article 5(1). Here, it is noteworthy that such a provision was actually dropped during the drafting of the Convention in 1950. A proposed draft of Article 5 read as follows:

‘No person shall be deprived of his liberty … save by legal procedure in the case of: (a) the lawful detention of a person after a conviction or as a security measure involving deprivation of liberty.’
Had this latter provision remained in the final text of the Convention, even ‘kettling’ of demonstrators which constituted a deprivation of liberty would likely have been capable of justification. Since it did not remain, however, the judgment in Austin strains the integrity of Article 5 itself.

So where does all of this leave the practice of ‘kettling’? While sometimes spun as being the lesser of two (or more) evils (– the Strasbourg Court for example noted that ‘more robust methods’ would have increased the risk of injury (para.66)), ‘kettling’ in practice has received widespread criticism. The UK’s Joint Committee on Human Rights concluded that: ‘it would be a disproportionate and unlawful response to cordon a group of people and operate a blanket ban on individuals leaving the contained area, as this fails to consider whether individual circumstances require a different response’ (para. 28 of the JCHR report). Similarly, in the wake of the policing of the G20 protests in 2009, the UK’s Home Affairs Committee was scathing of police commanders who were unwilling to allow protesters to leave a containment area to access medicine (paras. 44-46 of the HAC report).

The OSCE/ODIHR-Venice Commission Guidelines on Freedom of Peaceful Assembly also emphasize (at para.160) that: ‘Strategies of crowd control that rely on containment … must only be used exceptionally: Such strategies tend to be indiscriminate, in that they do not distinguish between participants and non-participants, or between peaceful and non-peaceful participants.’ This imperative of avoiding blanket treatment of protesters draws on the Strasbourg Court’s admissibility decision in Ziliberberg v Moldova (2004). Here, the Court noted that ‘an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour.’

There has also long been a question-mark over the impact and prudence of ‘kettling’ as a public order management strategy. In the aftermath of the violent G20 protests in Toronto in June 2010, for example, the Toronto Police Service After-Action Review (June 2011) concluded that:

‘Crowd behaviour is often influenced by the type and manner of police deployment. Displays of real or implied force can lead to negative crowd reactions that may escalate a situation. … The use of a containment technique or box, referred to by some as a “kettle,” has operational merit for containing and preventing the spread of disorder. However, persons not involved in the event must have both a route of egress from and the opportunity to leave the affected area. Containment tactics should be modified to include specific direction as to when they are to be used. When used, a controlled egress point should be established and appropriate notification provided to the crowd.’ (pp.31-32)
Recognition at least of the escalatory potential of blanket containment echoes the argument made by psychologists Steve Reicher and Clifford Stott who have warned that if the police treat a crowd as presenting a uniform threat of danger, this could become a self-fulfilling prophecy:

This common treatment has led crowd members to reconceptualize themselves as members of a common category. Moreover, the expectation of mass support engendered by such a common categorization has empowered crowd members to resist the police. This in turn has fed back into police actions (again, we infer, mediated by their perceptions and their power), hence setting up a cycle of tension and escalating conflict. (1998: 512).
In contrast, the Court in Austin both perpetuated the myth of crowds as undifferentiated mobs and the police role as being about ‘control’ rather than facilitating the enjoyment of fundamental rights.

Finally, there is good reason to be extremely careful about asserting a bright-line distinction between ‘paradigm’ and ‘non-paradigm’ Article 5 cases. The analogous (non-paradigm) cases discussed by the Court of Appeal and House of Lords in Austin were highlighted with a view to suggesting that certain deprivations of (or restrictions upon) liberty are intuitively beyond the scope of Article 5. This is a dangerous premise. Instead, such typologies and analogies are best avoided altogether in favour of a test which examines all cases by applying objective factors such as type, duration, effects and manner of implementation and – as crucially suggested here, in view of the likely deployment of ‘kettling’ strategies – whether the rights to freedom of speech or assembly are also engaged. The Court’s concession that ‘kettling’ might on different facts engage Article 5 is perhaps the only silver lining around what is otherwise (in the words of the dissent, para.7) ‘a bad message to police authorities’.

Thursday 22 March 2012

New Joint NGO Statement on Draft Brighton Declaration

Following an earlier open letter, the same group of leading human rights NGOs has published a new joint statement with further comments: 'Joint NGO input to the ongoing negotiations on the draft Brighton Declaration on the Future of the European Court of Human Rights'. The statement emphasizes three main points: it warns against curtailing access to the Court by making the admissibility criteria overly severe, it argues against casting the notions of subsidiarity and margin of appreciation into stone (= into the Convention) since this would curtail the Court's own nuanced approach and, finally, it calls for respite in the reform process after all the new proposals from Interlaken and Izmir - and certainly for civil society involvement in any further reform steps.

Wednesday 21 March 2012

Working Paper on ECHR as Living Instrument

George Letsas of University College London has posted a working paper on the evolutive interpretation of the ECHR on SSRN. The paper is entitled 'The ECHR as a Living Instrument: Its Meaning and its Legitimacy'. This is the abstract:

The idea that the ECHR is a living instrument that must be interpreted according to present-day conditions has been a central feature of Strasbourg’s case law from its very early days. This paper begins by providing a general account of the way in which the European Court of Human Rights has understood and used evolutive interpretation, by looking at relevant case law and how it has developed over time (sections 2 and 3). It then moves on to discuss the rationale and justifiability of the doctrine, particularly in relation to the moral foundations of human rights (section 4). The second part of paper (section 5) addresses the general issue of the European Court's legitimacy over contracting states and the role that evolutive interpretation plays in arguments in favour and against legitimacy. It argues that commitment to evolutive interpretation is essential, rather than a threat, to the Court's legitimacy.

Monday 19 March 2012

Seminar on European Court and Doctrine

The International Institute of Human Rights in Strasbourg is organising a seminar on 10 and 11 May entitled 'La Cour Européenne des Droits de l'Homme et la Doctrine' (The European Court of Human Rights and Doctrine). The seminar will be held in the Court's building and it will be in French. This is the programme:

10 May

14h00-14h30 : Allocution de bienvenue, J-P. Costa, Président de l’IIDH, Ancien Président de la Cour européenne des droits de l’homme; Ch. Mestre, Professeur à l’Université de Strasbourg, Doyen de la faculté de droit.
14h30-14h50 : Propos Introductifs, S. Touzé, Professeur à l’Université de Strasbourg, Secrétaire Général de l’IIDH.

Présidence : L. Wildhaber, Ancien Président de la Cour européenne des droits de l’homme

14h50-15h10: La place de la doctrine dans les argumentaires des requérants, C. L. Popescu, Professeur, Université de Bucarest
15h10-15h30: La place de la doctrine dans les argumentaires des Etats défendeurs, A.-F. Tissier, Sous-directrice des droits de l’homme, Ministère des Affaires étrangères
et européennes

Pause Café

15h50-16h10: La place de la doctrine dans les argumentaires des tiers intervenants, D. Szymczak, Professeur, Sciences Po Bordeaux.
16h10-16h30: La doctrine comme Conseil devant la Cour, Ch. Tomuschat, Professeur Emérite, Humboldt University de Berlin
16h30-17h30 : Discussion

11 May

Présidence : J-P. Costa, Président de l’IIDH, Ancien Président de la Cour européenne des droits de l’homme

9h30-9h50: L’oeuvre doctrinale des juges, critère d’élection des juges?, M. De Salvia, Vice-Président de l’IIDH, Ancien Jurisconsulte de la Cour européenne des droits de l’homme, Professeur associé à l’Université Catholique de Milan.
9h50-10h10: La place de la doctrine dans le travail du greffe, P. Dourneau-Josette, Chef de division juridique, Greffe de la Cour européenne des droits de l’homme.

Pause café

10h30-10h50: La place de la doctrine dans le délibéré, A. Kovler, Juge, Cour européenne des droits de l’homme.
10h50-11h10: La doctrine et les débats doctrinaux dans les opinions séparées
des juges, J. Andriantsimbazovina, Professeur, Université de La Rochelle.
11h10-12h00 : Discussion

Présidence : J. Casadevall, Vice-Président de la Cour européenne des droits de

14h00-15h00: La production doctrinale des juges – Regards croisés sur l’influence des
positions doctrinales des membres de la Cour, J-P. Marguénaud, Professeur, Université de Limoges; F. Tulkens, Vice-Présidente de la Cour européenne des droits de l’homme.
15h00-15h30: Discussion

Pause café

15h45-16h45: La Cour et sa jurisprudence dans la doctrine – Regards croisés sur
l’analyse et les positions de la doctrine sur la Cour européenne des droits
de l’homme et sur sa production jurisprudentielle, L. Burgorgue-Larsen, Professeur, Ecole de Droit de la Sorbonne, Université Paris I; D. Spielmann, Juge, Cour européenne des droits de l’homme.
16h45-17h15 : Discussion

Conclusions générales
F. Sudre, Professeur, Université de Montpellier.
Registration can be done here.

Thursday 15 March 2012

Aksu Grand Chamber Judgment - short guest post

Today the Grand Chamber of the European Court of Human Rights issued its judgment in the case of Aksu v. Turkey on stereotypes about Roma in state-sponsored books and dictionaries. As in the earlier Chamber judgment, no violations of the Convention were found. My colleague Theo Rosier, of the legal theory institute at Utrecht University, has already read the judgment. Here are his first impressions in a short guest post:

The Grand Chamber today delivered its judgment in the case of Aksu v. Turkey (Application nos. 4149/04 and 41029/04). I think this judgment deserves to be noted because – as far as I know – it is the first judgment of the European Court in which it explicitly stated that the right to respect for private live (Article 8 ECHR) implies positive obligations of the State to protect individuals belonging to ethnic minorities against negative stereotyping.

Surprisingly, the Court did not reach this result by expanding its recently developed doctrine “that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life” (ECtHR 7 February 2012 Axel Springer AG v. Germany (no. 39954/08), § 83. Compare the line of cases from ECtHR 30 March 2004, Radio France v. France (53984/00), § 31; ECtHR 29 June 2004, Chauvy v. France (64915/01), § 70 via ECtHR 15 November 2007, Pfeifer v. Austria (12556/03), § 35 to more recent cases like ECtHR 18 January 2011, Mikolajová v. Slovakia (4479/03) and ECtHR 10 May 2011, Sipoş v. Romania (26125/04)). Instead, the reasoning of the Court in Aksu just succinctly emphasized that “an individual’s ethnic identity must be regarded as another such element” of a person’s physical and social identity that is embraced by the notion of ‘private life’ (§ 58) and that “any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group.”(§ 59)

However that may be, the judgment makes clear that an individual who complains that the State has not done enough to protect him or her against racial insults, ethnic stereotyping, and racial defamation should in principle be considered a victim within the meaning of Article 34 of the Convention (§ 53-54). Whether he/she will get a judgment in his/her favor will above all depend on the weight that the Court will give “to the public interest in protecting freedom of expression” (§ 63). A remarkable development indeed.

Wednesday 14 March 2012

Conference on Ternovszky Judgment

On 31 May and 1 June the Hague University of Applied Sciences and Bynkershoek Institute's Research Center for Reproductive Rights are organising a conference on the consequences of the European Court's judgment in Ternovzsky v. Hungary on the right to give birth at home. The conference, entitled "human rights in childbirth", is in the organisers' words about the following:

What are the Rights and Responsibilities of Birthing Women?

Who decides how a baby is born? Who chooses where a birth takes place? Who bears the ultimate responsibility for a birth and its outcome? What are the legal rights of birthing women? What are the responsibilities of doctors, midwives and other caregivers in childbirth? What are the rights and interests of the unborn, and how are they protected?

This international conference will convene for discussion and clarity on the scope of birthing women's human rights to authority, support and choice in childbirth. In December, 2010, the European Court of Human Rights issued the first holding of a high human rights tribunal addressing the legal authority of birthing women as a human rights issue. In Ternovszky v. Hungary, the ECHR addressed the criminal prosecution of midwives in Hungary for supporting out-of-hospital births. The ECHR stated that the human right to privacy encompasses,

"inter alia, aspects of an individual's physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world [cite omitted], and it incorporates the right to respect for both the decisions to become and not to become a parent [cite omitted]. The notion of a freedom implies some measure of choice as to its exercise. The notion of personal autonomy is a fundamental principle underlying the interpretation of the guarantees of Article 8 [cite omitted]. Therefore the right concerning the decision to become a parent includes the right of choosing the circumstances of becoming a parent. The Court is satisfied that the circumstances of giving birth incontestably form part of one's private life for the purposes of this provision; and the [Hungarian] Government did not contest this issue." (Ternovszky v. Hungary, no. 67545/09, 14 December 2010)

Registration to the conference can be done through this link.

Friday 9 March 2012

NGO Letter and Comments on Brighton Reform Proposals

A group of leading human rights NGOs is calling for more transparency and civil society involvement in the Court's reform process. The group, consisting of Amnesty International, the AIRE Centre, the European Human Rights Advocacy Centre (EHRAC), Human Rights Watch, INTERIGHTS, the International Commission of Jurists (ICJ), JUSTICE and REDRESS, has addressed an open letter on this issue to the member states of the Council of Europe. Unlike what happened with the first draft, which was leaked to the media two weeks ago, the NGOs call for a more open and inclusive process in which new drafts are made public in a timely way in order to allow for civil society input.

The coalition of NGOs, which was earlier involved in galvanising civil society during the Interlaken process, also issued joint preliminary comments on the leaked Brighton draft. The core of the comments reflect the criticism that I have voiced on this blog earlier and which is also shared by the group of other NGOs on which I posted yesterday:

"Against this background we are deeply concerned that some measures at the heart of this Draft have the potential to marginalise and undermine the functioning of the Court without the evidence having been produced to establish that such radical change is needed and with little recognition of the damage they could do to the Convention system in the long-term. ... We are particularly concerned at two aspects of the draft Declaration:

· The proposal to incorporate the principle of subsidiarity and the doctrine of the margin of appreciation – broadly defined – into the text of the Convention.
· The proposals to amend the admissibility criteria."
To be continued!

Thursday 8 March 2012

NGO Statement on European Court Reforms

The Open Society Justice Initiative has put a joint statement of a large number of NGOs online. The text reflects the concerns about the current reforms process of the ECHR. Amongst others it warns against greater latitude for governments to avoid their human rights obligations and it argues for an evaluation of the effects of the recent Protocol 14 reforms and the Court's own internally reformed working methods, before adding reform to reform to reform ... Individuals can also sign up to the petition, as for example Emma Bonino, Olivier de Schutter and Bill Bowring have done.

The Justice Initiative has also put five factsheets on the reform debates on their website. The issues addresse in these sheets are the following:

1. Summary of Brighton Declaration Draft. A summary of the proposed text advanced by the British government which currently holds the chairmanship of the Council of Ministers of the Council of Europe.

2. Protocol 14: How It Works. Introduced in June 2010, this amendment to the European Convention of Human Rights contained measures aimed at improving the court's ability to manage its caseload.

3. Protocol 14: De Minimis. A look at steps being implemented under the latest reforms to prevent trivial cases from taking up court time.

4. Pilot Judgments. By ensuring that a single "pilot" judgment is properly implemented, the court is seeking to resolves similar, repetitive complaints from other applicants.

5. The "Filtering" Debate. The court set up a filtering unit in 2011 to weed out inadmissible applications from Russia, Turkey, Romania, Ukraine and Poland, but there are concerns that further filtering could obstruct substantive applications.

Wednesday 7 March 2012

Article on Margin of Appreciation by Judge Spielmann

Judge Dean Spielman, one of the section presidents at the European Court of Human Rights, has written a working paper in the series of the Centre for European Legal Studies of the University of Cambridge. It deals with the issue of the margin of appreciation, more topical than ever in the context of the upcoming Brighton conference about the European Court. The paper is entitled 'Allowing the Right Margin. The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?'. This is the abstract:

The doctrine of the national margin of appreciation is well established in the case-law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute.

The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case-law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or “reverse” margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No. 14, now ratified by all Council of Europe member States, enshrines in Article 12 – at least to some extent – an obligation to apply a margin of appreciation.

One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

Monday 5 March 2012

Liber Amicorum Peter Leuprecht

A Liber Amicorum in honour of Peter Leuprecht, one of the grand old men of the Council of Europe, has been published with Bruylant (featuring his trademark bow tie on the cover). During his long career he was, amongst many other positions, director of the human rights division within the Council of Europe and deputy Secretary General. The book, edited by Olivier Delas and Michaela Leuprecht, includes a number of contributions on the European Court of Human Rights. The full table of contents can be found here.

Friday 2 March 2012