Wednesday 28 November 2012

Court's Guide to Case-Law per Article


This week, the European Court of Human Rights started to publish a new series of studies on its jurisprudence relating to specific Articles of the ECHR, the so-called Guide to Case-law. Another addition to its range of informative tools about the Convention - next to the information notes, fact sheets, the admissibility guide and the research reports.

The first guide, on the right to liberty in Article 5 ECHR has been put online. With a length of almost 40 pages, this is a very detailed overview - handily put in systematic sections focusing on the different parts and terms of Article 5. Direct hyperlinks to the relevant case-law are provided throughout the text. The Court has announced that similar guides on other Convention articles will follow soon. The more this collection will continue to grow, the more competition it will be for traditional ECHR handbooks, since this series is very up-to-date and comes from within the Court itself.


Monday 26 November 2012

Joint NGO Statement on Draft Protocols 15 and 16

A group of European human rights NGOs has published a Joint Comment on the drafting of Protocols 15 and 16 to the European Convention, about which I reported previously here. The NGOs are critical about some proposed aspects (such as the singling out of the margin of appreciation instead of the mentioning of a whole number of relevant key principles) and give a number of recommendations. This is the text:

Joint NGO comments on the drafting of Protocols 15 and 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms

Following the outcome of the discussions within the DH-GDR and in view of the 76th meeting of the Steering Committee for Human Rights, Amnesty International, the AIRE Centre, the European Human Rights Advocacy Centre (EHRAC), the Helsinki Foundation for Human Rights (HFHR), Human Rights Watch, Interights, the International Commission of Jurists (ICJ), JUSTICE, Open Society Justice Initiative and REDRESS wish to provide the following comments.

A.- Draft Protocol 15 to the European Convention on Human Rights

A reference to the margin of appreciation and principle of subsidiarity in the Preamble

We consider fundamental that article 1 of draft Protocol 15 recalls the supervisory jurisdiction of the Court and makes clear that the Court remains the sole institution empowered to define, develop and apply tools of judicial interpretation such as the margin of appreciation doctrine.

We take note of the compromise text of current article 1 of draft Protocol 15. While the current wording recalls the supervisory jurisdiction of the Court, including when it applies tools of judicial interpretation such as the doctrine of the margin of appreciation, we consider that article 1 of draft Protocol 15 must be further improved to reflect more accurately this doctrine.

Article 1 of draft Protocol 15 must make clear that, while the Court considers that state parties have a certain margin of appreciation with regard to the application of some Convention rights, it is uncontested that the doctrine of the margin of appreciation does not apply at all in respect of some rights or aspects of rights. In this regard, both the Brighton Declaration and the draft Explanatory Report to Protocol 15 recognize that the existence and the scope of the states’ margin of appreciation “depend […] on the circumstances of the case and the rights and freedoms engaged”. While in some instances the margin of appreciation will be wide, the Court has always accepted that there are circumstances in which states’ margin of appreciation is narrow, and that the margin of appreciation does not apply at all in respect of some rights or aspects of rights.

In view of the above:
· We urge the state parties to ensure that article 1 of draft Protocol 15 better reflects the fact that the existence and scope of the states’ margin of appreciation depend on the circumstances of the case and the rights and freedoms engaged.

· Accordingly, we urge the state parties to amend the current text of article 1 of draft Protocol 15 as follows (amendment is highlighted in bold italic characters):

“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and in doing so may enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.”

B.- Draft Protocol 16 to the European Convention on Human Rights


We welcome and support the decision taken by the DH-GDR to avoid adding admissibility criteria to the ones already contained in the text of the Convention,5 as well as to allow the Court to receive contributions from any High Contracting Party or person.

With regard to the “right” to submit contributions, we regret that the current text of article 3 of draft Protocol 16 creates an imbalance between the parties to the domestic proceedings in cases where the State concerned is one of the parties to such proceedings. While we consider that the Protocol should mention that all parties to the domestic proceedings have a right to submit written comments and take part in any hearing, we take note and welcome the fact that the draft Explanatory Report to Protocol 16 indicates that the parties to the domestic proceedings should be invited to submit written and oral contributions.

With regard to the participation of the would-be applicant in the advisory opinion proceedings, we consider that a legal aid system before the Court should be made available. This would enable effective access to a procedure which is initiated by the domestic court and which may have an important impact on the outcome of the case.

With regard to the effect of advisory opinions, we consider that the interpretation of the Convention rights given by the Court in an advisory opinion should be binding on the requesting court or tribunal, and more broadly on the state authorities of the concerned High Contracting Party. We therefore regret the approach retained by the DH-GDR at article 5 of draft Protocol 16 and consider that, should such a provision be endorsed by the CDDH, the Explanatory Report to Protocol 16 should make clear that in line with the purpose of having advisory opinions on significant issues pertaining to the application of the Convention, the Court’s authoritative interpretation of the Convention should be applied by all High Contracting Parties. In this regard, the current wording of paragraph 28 of the draft Explanatory Report would need to indicate this requirement more clearly.

With regard to the type of domestic courts specified by the High Contracting Parties in accordance with article 10 of draft Protocol 16, we take note with satisfaction that the draft Explanatory Report indicates that state parties may include domestic courts which, while issuing final decisions, may not necessarily have to be considered to satisfy the exhaustion of domestic remedies.

In view of the above:


· We urge the state parties to endorse the decision made by the DH-GDR to avoid adding admissibility criteria to the ones already contained in the text of the Convention, as well as to allow the Court to receive contributions from any High Contracting Party or person.

· We recommend that the Protocol effectively enables all parties to the domestic proceedings to submit written comments and take part in any hearing before the Court.

· We recommend that a legal aid system before the Court is made available to the would-be applicant, thus enabling an effective access to the advisory opinion proceedings initiated by the domestic court.

· We recommend that the Explanatory Report indicates more clearly that the Court’s authoritative interpretation of the Convention shall be applied by all High Contracting Parties.

Friday 23 November 2012

Telegraaf Judgment on Protection of Journalists' Sources

Yesterday, the European Court issued its judgment in yet another case about the protection of journalistic sources in the Netherlands, and again found the country in violation of the ECHR: Telegraaf and others v. The Netherlands. I am very happy to welcome a guest post by media law expert professor Dirk Voorhoof of the University of Ghent:

Security and Intelligence Services Must Also Respect Protection of Journalistic Sources
For the third time in a short period, the European Court of Human Rights has found that the Netherlands authorities have disrespected the right of journalists to protect their sources. Since the judgment in the Voskuil case (ECHR 22 November 2007) and especially since the Grand Chamber judgment in the Sanoma case (ECHR 14 September 2010, see also ECHR Blog) it has become clear that the legal framework in the Netherlands and some of the practices by its public authorities are not sufficiently guaranteeing the right of journalists to protect their sources. In the judgment of 22 November 2012 in the case of Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands (Appl. No. 39315/06), the Court is of the opinion that the telephone tapping and surveillance of two journalists by the Netherlands security and intelligence services lacked a sufficient legal basis as the law did not provide safeguards appropriate to the use of powers of surveillance against journalists with a view to discovering their journalistic sources. There has therefore been a violation of Articles 8 and 10 of the Convention (§ 102). Also an order to surrender leaked documents belonging to the security and intelligence services is considered as a violation of the journalists’ rights as guaranteed by Article 10 of the Convention. The Court is of the opinion that the Netherlands authorities could not provide relevant and sufficient reasons to justify the interference with the journalists’ rights in this case. According to the Court, there was no “overriding requirement in the public interest” justifying the order to surrender the documents (§ 131-132).


The ruling of the European Court in De Telegraaf case does also have consequences outside the Netherlands. The judgment implies that intelligence and security services in each of the 47 member states of the European Convention cannot interfere with the rights of journalists to have their sources protected under Article 10 of the Convention, unless an overriding requirement in the public interest can pertinently justify such an interference. Any coercive measures against journalist must be prescribed by law in a sufficiently precise and transparent way and effective procedural safeguards must exist to protect journalists against abuse of power by secret services. Most importantly, the Court confirms that the procedural guarantee of an ex ante review by a judge or another independent body is also applicable to targeted surveillance or telephone tapping of journalists undertaken by security and intelligence authorities. A review post factum, whether by a Supervisory Board, a Parliamentary Committee on the Intelligence and Security Services or the National Ombudsman cannot restore the confidentiality of journalistic sources once it is destroyed. As a consequence of this judgment, the legal framework and the operational practices of many security and intelligence services in Europe will need to be modified, in order to guarantee the rights of journalists under Article 10 of the Convention. Without guarantees of an ex ante review by a judge or an independent body, coercive measures against journalists by security and intelligence services are inevitably to be considered as breaches of the rights of journalists covered by Article 10.

The facts

The case concerns the actions taken by the domestic authorities against two journalists, De Haas and Mos, of the national daily newspaper De Telegraaf after having published articles about the Netherlands secret service AIVD (Algemene Inlichtingen- en Veiligheidsdienst – General Intelligence and Security Service) suggesting that highly secret information had been leaked to the criminal circuit, and more precisely to the drugs mafia. The journalists were ordered by the National Police International Investigation Department to surrender documents pertaining to the secret services’ activities. The two journalists had also been subject to telephone tapping and observation by AIVD agents. Their applications in court regarding these measures failed, as well at the level of the Regional Court in The Hague as at the level of the Supreme Court (Hoge Raad). According to the domestic courts, neither the order to surrender the documents nor the telephone tapping and observations violated the right to protect sources covered by Article 10 of the European Convention. It has been argued – both in a decision of the Minister of the Interior and a report from the Supervisory Board of the Intelligence and Security Services – that the use of special powers against the journalists was lawful and necessary in a democracy. It was emphasized that the AIVD investigation was intended to make an assessment of the leaked AIVD-files and, within that framework, it was considered necessary and proportionate to use special powers against the journalists in possession of the leaked files. Also the phone tapping was considered to meet the criteria of necessity, proportionality and subsidiarity.

When later questioned as witnesses in criminal proceedings against persons suspected of leaking secret AIVD information, the two journalists refused to answer the questions before the investigative judge, arguing that the judicial order to reveal information might lead to the identification of the person from whom they had received secret AIVD documents. As the journalists at a later hearing before the investigative judge persisted in their refusal to answer his questions, they were detained in prison for failure to comply with a judicial order to reveal information. A few days later however the journalist were released by judgment of the Regional Court of The Hague recognizing the importance of the protection of journalistic sources. The Regional Court also found that no issue of State security could arise since the availability of the documents outside the AIVD had been common knowledge in the media.

The complaint in Strasbourg

Relying on Article 8 (right to respect for private and family life) and Article 10 (freedom of expression and information), the publishing company of De Telegraaf and the two journalists De Haas and Mos together with the Netherlands Association of Journalists (Nederlandse Vereniging van Journalisten) and the Netherlands Society of Editors-in-Chief (Nederlands Genootschap van Hoofdredacteuren) complained in Strasbourg about the order to surrender documents which may identify journalistic sources and about the use of special powers by the Netherlands authorities organizing telephone tapping and surveillance. They argued that the use of special powers against the journalists, who were not themselves “targets”, could not be covered by section 6 § 2, a, of the Intelligence and Security Services Act and therefore lacked the basis in law required by the second paragraphs of Articles 8 and 10 of the Convention. Conversely, be it the case that the two journalists were in fact “targets”, then the domestic courts would wrongly have held the interest in the protection of journalistic sources to be outweighed by the interest of State security, again in violation of Article 10 of the Convention. Art. 6 § 2, a, of the 2002 Intelligence and Security Services Act stipulates that the AIVD can carry out investigations “relative to organisations and persons who, by the aims which they pursue or their activities, give rise to serious suspicion that they constitute a danger to the continued existence of the democratic legal order or to the security or other weighty interests of the State”.

In a partial decision on the admissibility, the third section of the Court decided on 18 May 2010 (Appl. No. 39315/06) to declare the application by the Netherlands Association of Journalists and the Netherlands Society of Editors-in-Chief inadmissible, as these applicant-associations had not themselves been affected by the matters complained of under Articles 8 and 10 of the Convention. Consequently, neither association could claim to be a ‘victim’ of a violation of these provisions in the sense of Article 34 of the Convention (compare ECtHR decision of 25 June 2002 in the case of Martine Ernst et autres v. Belgique (Appl. No. 33400/96) also declaring, for the same reason, the application of the General Association of Professional Journalists of Belgium inadmissible ratione personae).

The Court’s judgment

The Court makes a separate analysis of the use of special powers by the AIVD against the journalists on the one hand, and the order to surrender the documents on the other hand. The first issue on the use of the special powers is undoubtedly the most important and interesting one.

The Court disagrees with the argument of the Netherlands’ Government disputing the journalists’ position that the protection of journalistic sources was at stake. According to the Government, the AIVD resorted to the use of special powers not to establish the identity of the journalists’ sources of information, but solely to identify the AIVD staff member who had leaked the documents. The Court’s understanding of the concept of a journalistic “source” is indeed a broader one, referring to “any person who provides information to a journalist”. The Court understands “information identifying a source” to include both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” as far as they are likely to lead to the identification of a source. Therefore, the Court finds that the AIVD sought, by the use of its special powers, to circumvent the protection of a journalistic source (§ 86-87). As the issues of privacy protection and telephone tapping under Article 8 are intertwined with the Article 10 issue, the Court finds it appropriate to consider the matter under Articles 8 and 10 concurrently.
The next question is whether the interference with the journalists’ right is in accordance or prescribed by law. The Court reiterates its case-law according to which the expression “in accordance with the law” not only requires the impugned measure to have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. The law must be compatible with the rule of law, which means that it must provide a measure of legal protection against arbitrary interference by public authorities with the rights safeguarded by Article 8 § 1 and Article 10 § 1. The risks of arbitrariness are evident – especially in cases as this, where a power of the executive is exercised in secret.
According to the Court, the legal provisions regarding the special powers of the AIVD were accessible and foreseeable. The journalists could not reasonably be unaware that the information, which had fallen into their hands, was authentic, classified information that had unlawfully been removed from the keeping of the AIVD and that publishing this information was likely to provoke action aimed at discovering its provenance. The crucial issue is, however, that the status as journalists required special safeguards to ensure adequate protection of their journalistic sources. The Court is of the opinion that the present case is characterised by the targeted surveillance of journalists in order to determine from whence they have obtained their information (§ 97). Furthermore, in the field of security and intelligence services where abuse is potentially so easy in individual cases and could have such harmful consequences for a democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge. The Court refers to its finding in the Sanoma case, which involved a disclosure order of journalistic sources that was given by a public prosecutor. In that case, the Grand Chamber emphasized the necessity of the “ex ante”-character of independent review by a judge, a court or another independent body, as the police or a public prosecutor cannot be considered to be objective and impartial so as to make the necessary assessment of the various competing interests. Judicial review post factum could not cure these failings, since it could not prevent the disclosure of the identity of the journalistic sources from the moment when this information came into the hands of the public prosecutor and the police.
The Court applies this approach also in the instant case, as the use of special powers against the journalists appeared to have been authorised by the Minister of the Interior and Kingdom Relations, if not by the head of the AIVD or even a subordinate AIVD official, but in any case without prior review by an independent body with the power to prevent or terminate it. Moreover, review post factum, whether by the Supervisory Board, the Parliamentary Committee on the Intelligence and Security Services or the National Ombudsman cannot restore the confidentiality of journalistic sources once it is destroyed. For these reasons, the Court finds that the law did not provide safeguards appropriate to the use of powers of surveillance against journalists with a view to discovering their journalistic sources. There has therefore been a violation of Articles 8 and 10 of the Convention (§ 100-102).
Regarding the second issue, the Court agrees that the order to surrender the leaked documents to the AIVD was prescribed by law and pursued a legitimate aim (‘national security’ and ‘prevention of crime’), but it estimates the interference with the right of journalists to protect their sources in casu not necessary in a democratic society. Referring to its case law since Goodwin v. the United Kingdom (1996), an interference with a journalist’s sources can only be justified by an overriding requirement in the public interest. In its reasoning the Court also emphasized that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2. As none of the reasons invoked by the AIVD are considered relevant and sufficient by the European Court, the conclusion is that the order to surrender the documents was not justified and that this interference amounted to a violation of Article 10 of the Convention.


Comment


The judgment in De Telegraaf case and the finding of a double violation of Article 10 of the Convention, both regarding the order to surrender the documents as with regard the coercive measures by the AIVD against the journalists, are fully consistent with the Court’s earlier case law applying Article 10 in cases of protection of journalists’ sources.

In the Sanoma case, the Court in its Grand Chamber judgment of 14 September 2010 emphasized the importance of source protection based on Article 10 of the Convention, noting that “orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources” (§ 89). In the judgment of 22 November 2012 in the case of Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, the European Court reiterates that “protection of journalistic sources is one of the basic conditions for press freedom, as is recognised and reflected in various international instruments including the Committee of Ministers Recommendation (...). Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest” (§ 127).

It would have been very surprising if the Court had neglected these principles in a case concerning the interference with journalists’ sources by security and intelligence services. As the Grand Chamber has explicitly stated in Sanoma v. the Netherlands on 14 September 2010, procedural safeguards proscribed by law should inherently be part of the protection of journalistic sources in application of Article 10 ECHR. According to the Court, “first and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body” (§ 90). The Court is of the opinion that “given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed” (§ 90). The Grand Chamber emphasized that “the requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources' identity if it does not” (§ 90). It is clear in the Court's view, “that the exercise of any independent review that only takes place subsequently to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality” (§ 91). The Court continued in Sanoma to emphasize the necessity of the “ex ante”-character of such independent review: “Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist's sources (..). In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk” (§ 92).

The Court has now in its judgment of 22 November 2012 fully applied this approach in relation to coercive measures by the security and intelligence services. As a consequence of this judgment, the legal framework and the operational practices of many security and intelligence services in Europe will need to be modified. Without guarantees of an ex ante review by a judge or an independent body, coercive measures such as telephone tapping, registration of telecommunications or other forms of surveillance of journalists by security and intelligence services are inevitably to be considered as breaches of the rights of journalists covered by Article 10.  An ex ante judicial review is  necessary to guarantee that the reasons invoked by security and intelligence services to have access to journalists’ sources are pertinently and sufficiently motivated.  A lack of such a guarantee is as such a breach of Article 10 of the Convention.

Professor Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media and of the Human Rights Centre and the Center of Journalism Studies at Ghent University. Further information on Dirk Voorhoof can be found on his personal webpage here. He earlier reported on this ECHR BLOG about the case Sanoma Uitgevers B.V. v. the Netherlands (ECtHR 30 March 2009 and ECtHR (Grand Chamber) 14 September 2012) and the Financial Times Ltd. a.o. v. the United Kingdom (ECtHR 15 December 2009). For an overview of the Court’s case law on protection of journalistic sources, see also D. Voorhoof, “The Protection of Journalistic Sources Under Fire?”, in European Media Law, Collection of Material 2012-2013, Knops Publ., 2012, 287-306.

Monday 19 November 2012

New Handbook on ECHR in French

Professor Laurence Burgorgue-Larsen of Paris-I (Sorbonne) University has just published a new French-language handbook on the European Convention on Human Rights. Entitled 'La Convention européenne des droits  de l’homme', it has been published by Lextenso Éditions. Burgorgue-Larsen is an expert in both Inter-American and European human rights jurisprudence. This is the book's abstract:

Cet ouvrage a pour ambition de proposer une synthèse des grandes lignes jurisprudentielles dégagées par la Cour européenne des droits de l’homme concernant chaque droit garanti, y compris ceux consacrés par les protocoles dits « matériels ». Après une introduction qui entend présenter tant la naissance et l’évolution du système conventionnel que les défis importants auxquels il est confronté, plus de cinquante ans de jurisprudence sont analysés à la fois de façon concise et effective. Cet ouvrage s’adresse tant aux étudiants qu’aux praticiens de l’univers judiciaire en contact permanent, de nos jours, avec la logique induite par la protection des droits de l’homme.


Le livre a été conçu afin de faciliter son maniement en tant qu’outil de travail : outre une bibliographie générale – présentant les études « classiques » sur la Convention en anglais, français, espagnol et italien – chaque commentaire des droits consacrés à l’échelle conventionnelle est assorti d’une bibliographie spécialisée afin de permettre d’éventuels approfondissements de la part des lecteurs. De même, il a été décidé de renvoyer les index directement aux commentaires des articles de la Convention européenne. Il s’agit d’un moyen supplémentaire pour le lecteur d’identifier, rapidement, les liens entre un thème (index thématique) et un arrêt (index jurisprudentiel) avec un droit précis. L’ensemble est à jour au mois de septembre 2012.
As this summary indicates, it is a good starting point for research, as it offers both general literature references and specialised ones per Convention article in a number of languages.

Thursday 15 November 2012

HUDOC Advanced Search Tutorial

The Court has just put online a short video tutorial on the advanced search options of the recently renewed HUDOC case-law database. It explains in much more detail than the basic earlier video how one can search through the extensive jurisprudence of the Court (and the former Commission to a certain extent). Here it is:

Wednesday 14 November 2012

New ECHR Protocols and Structural National Problems

A few weeks ago, at the end of October, the Committee of experts on the Reform of the Court (DH-GDR), met again to further discuss future Protocols 15 and 16 to the Convention (see my earlier reporting here). The report of this most recent meeting

All of these drafts will now be discussed by the Steering Committee for Human Rights (CDDH) at the end of November. The documents relating to the Committee's work can be perused here (and here in French). This website also includes reports of the meetings which give some insights into which points were discussed in the negotiations. An example is that the Commissioner for Human Rights will be given the right to participate in advisory opinion proceedings (in the new Protocol 16). It also set up a drafting group "C" (on the practice of interim measures and on the possibility of creating a "representative application procedure"- an additional way of dealing with large numbers of situations relating to the same human rights issue in a certain country, akin to class actions and collective complaints) and designated an expert consultant, Mr Martin Eaton, to prepare a draft toolkit to inform national public officials about state obligations under the ECHR.

The texts discussed at the meeting were:

In a separate process, the Legal Affairs Committee of the Parliamentary Assembly approved a report this Monday, entitled 'Ensuring the viability of the Strasbourg Court: structural deficiencies in States Parties'. Written by rapporteur Serhii Kivalov from Ukraine, the report focuses on what national authorities could and should do to counter and prevent structural and systemic human rights violations. This would enable the Court to be less burdened with repetitive applications. The last pages of the reprot also give a handy overview of all the pilot judgments so far. The report indicates that nine states face the most structural problems: Bulgaria, Greece, Italy, the Republic of Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine.

Friday 9 November 2012

Article on Extraterritoriality of the ECHR

Professor Samantha Besson (University of Fribourg) has published the article 'The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to' in the newest issue of the Leiden Journal of International Law (vol. 25, issue 4, 2012). This is the abstract:

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

Monday 5 November 2012

ECHR Articles in the Modern Law Review

The newest issue of the Modern Law Review (vol. 75, issue 6)  includes two articles on the European Convention of Human Rights. The first is an article written by Ian Leigh and Rex Ahdar entitled 'Post-Secularism and the European Court of Human Rights: Or How God Never Really Went Away'. This is the abstract:
This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils‘ religious freedom nor the proselytising or coercive effect of the 'passive‘ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion-state frameworks into a strict American-style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.


The second is a case commentary written by Paul Johnson entitled 'Adoption, Homosexuality and the European Convention on Human Rights: Gas and Dubois v France'. This is the abstract:

On 15 March 2012 the European Court of Human Rights (the Court) issued its first judgment addressing the differential treatment of same-sex and opposite-sex couples in respect of the adoption of a child. The Court held that excluding same-sex couples in civil partnerships, who have no legal right to marry, from adoption provisions available to married opposite-sex couples does not violate rights guaranteed by the European Convention on Human Rights (the Convention). I argue that the Court's reasoning in Gas and Dubois v France is unpersuasive and unsustainable in light of its wider case law.



Thursday 1 November 2012

New Publications on the ECHR

At the start of the month, again a short selection of articles published in various journals or online, with the Convention or Court as their subject-matter. First off, the Indiana International and Comparative Law Review includes an article by J. Heider entitled 'Unveiling the truth behind the French burqa ban: the unwarranted restriction of the right to freedom of religion and the European Court of Human Rights' in vol. 22,  no. 1 (2012) pp. 93-130.

In addition, the website of the Italian Society of International Law, on its forum page includes three articles about the ECHR. Two of them relate to the EU's accession to the European Convention:

And one is a comment on the Costa and Pavan v. Italy judgment of this summer: