Friday 21 December 2012

Christmas Break

Dear readers, this blog and its author are taking a Christmas break. I wish all of you a very good holiday season. May 2013 be a year with lots of interesting new development in ECHR jurisprudence, but even more importantly with a better protection of human rights in Europe and across the globe! I also express the hope that you will continue sending all your information on new ECHR-related publications and events and guest posts.

Please note: the Netherlands Institute of Human Rights SIM is moving to new premises in the coming weeks. Our new address as of January will be: Achter Sint Pieter 200, 3512 HT Utrecht, the Netherlands.

Merry Christmas!

Wednesday 19 December 2012

Conference on ECtHR and ECJ

Oxford Brookes University is organising a conference on Europe's two main Courts: the European Court of Human Rights and the European Court of Justice. The conference will be held on 18 January and is entitled 'Fundamental Rights In Europe: A Matter For Two Courts'. This is the description:

The aim of this workshop is to bring together scholars, judges and policy makers to discuss the legal framework for the protection of fundamental rights in Europe. This event will reflect on the relationship between the Court of Justice of the EU (CJEU) in Luxembourg and the European Court of Human Rights (ECtHR) in Strasbourg. It will examine the current state of accession of the European Union to the European Convention on Human Rights (ECHR) and consider the legal implications of the accession for the protection of the fundamental rights of EU and non-EU citizens. It will explore this theme from a number of different angles and as such it is divided into four main streams: employment rights, citizenship and migration, fundamental rights versus fundamental freedoms and access to justice.

The following themes will be explored:

a. Overview of the EU law and policy aiming at legal integration based on rights;

b. Analysis of legal implication s of the EU Charter, the EU accession agreement and the ECRH in relation to: employment law, citizenship and migration and trade in Europe; analysis of the ECHR and ECJ case law in the respective areas;

c. Evaluation of the relationship between the ECJ and the ECtHR and their mechanisms;

d. Examination of the interplay between EU, ECHR and national level: the extent to which the EU/ECHR fundamental rights’ caveat sits with simultaneous developments in strategies/law and policies at national levels;

e. Analysis of the effects/ impacts of the different laws/policies on the lives of EU citizens/residents, and the potential discrepancy between formal rights and the actual ability of people to enjoy these;

f. Legal implication in relation to the EU Draft Accession Agreement to the ECHR

The morning plenary session will be followed by four parallel afternoon sessions and a final round table.

Speakers include:

■ Mr Niilo Jaaskinen, Court of Justice of the European Union (Advocate General)

■ Ms Kristi Raba, Council of the European Union

■ Mr Joerg Polakiewicz, Human Rights Law and Policy Division, Council of Europe

■ Professor Paul Craig, University of Oxford

■ Professor Stephen Weatherill, University of Oxford

■ Professor Titia Loenen, Utrecht University

■ Judge Dragoljub Popović, European Court of Human Rights

You can register here.

Thursday 13 December 2012

New Book on Diversity and the ECHR

Professor Eva Brems of Ghent University, who leads one of the largest current ECHR-research projects in Europe with a very talented 'crew' of researchers, has compiled a book on diversity issues within the jurisprudence of the European Court. The approach of the book is original and innovative, as the contributors were asked to focus on one specific judgment of the Court and to make suggestions for a rewriting of that judgment. It is entitled 'Diversity and European Human Rights. Rewriting Judgments of the ECHR' and was published by Cambridge University Press. This is the abstract:

Through redrafting the judgments of the ECHR, Diversity and European Human Rights demonstrates how the court could improve the mainstreaming of diversity in its judgments. Eighteen judgments are considered and rewritten to reflect the concerns of women, children, LGB persons, ethnic and religious minorities and persons with disabilities in turn. Each redrafted judgment is accompanied by a paper outlining the theoretical concepts and frameworks that guided the approaches of the authors and explaining how each amendment to the original text is an improvement. Simultaneously, the authors demonstrate how difficult it can be to translate ideas into judgments, whilst also providing examples of what those ideas would look like in judicial language. By rewriting actual judicial decisions in a wide range of topics this book offers a broad overview of diversity issues in the jurisprudence of the ECHR and aims to bridge the gap between academic analysis and judicial practice.
And this is the table of contents:

Introduction Eva Brems; Part I. Children: 1. Rewriting V v. the United Kingdom: building on a groundbreaking standard Ursula Kilkelly; 2. Images of children in education: a critical reading of D. H. and Others v. The Czech Republic Sia Spiliopoulou Åkermark; 3. Mainstreaming children's rights in migration litigation: Muskhadzhiyeva and Others v. Belgium Wouter Vandenhole and Julie Ryngaert; Part II. Gender: 4. Redrafting abortion rights under the Convention: A, B and C v. Ireland Patricia Londono; 5. A noble cause: a case study of discrimination, symbols and reciprocity Yofi Tirosh; 6. From inclusion to transformation: rewriting Konstantin Markin v. Russia Alexandra Timmer; Part III. Religious Minorities: 7. Rethinking Deschomets v. France: reinforcing the protection of religious liberty through personal autonomy in custody disputes Renata Uitz; 8. Mainstreaming religious diversity in a secular and egalitarian state: the road(s) not taken in Leyla Sahin v. Turkey Pierre Bosset; 9. Suku Phull v. France rewritten from a procedural justice perspective: taking religious minorities seriously Saïla Ouald Chaib; Part IV. Sexual Minorities: 10. Rewriting Schalk and Kopf: shifting the locus of deference Holning S. Lau; 11. The burden of conjugality Aeyal Gross; 12. The public faces of privacy: rewriting Lustig-Prean and Beckett v. the United Kingdom Michael Kavey; Part V. Disability: 13. Unravelling the knot: Article 8, private life, positive duties and disability: rewriting Sentges v. The Netherlands Lisa Waddington; 14. Re-thinking Herczegfalvy: the Convention and the control of psychiatric treatment Peter Bartlett; 15. Rewriting Kolanis v. the United Kingdom: the right to community integration Maris Burbergs; Part VI. Cultural Minorities: 16. Minority marriage and discrimination: redrafting Muñoz Díaz v. Spain Eduardo J. Ruiz Vieytez; 17. Chapman redux: the European Court of Human Rights and Roma traditional lifestyle Julie Ringelheim; 18. Erasing Q, W and X, erasing cultural difference Lourdes Peroni.
Congratulations, Eva!

Tuesday 11 December 2012

Musings of a Former Judge

With yesterday's post about translations into many languages in mind, I dare to post for once a publication in one of Europe's smaller languages, Dutch (also my own incidentally). At the occasion of his retirement from the European Court of Human Rights, a compilation of his own writings was presented to the former judge in respect of the Netherlands, Egbert Myjer. The book, entitled 'Straatsburgse Myj/meringen' (the best translation is probably 'Musings from
Strasbourg', although the wordplay with his name is impossible to translate) includes the many short articles he wrote for the Dutch human rights review (Nederlands Tijdschrift voor de Mensenrechten) in the course of his years in Strasbourg. With his well-known knack for irony and pithy statements, the short articles give an insight into the many aspects of the Court's practice that do not usually surface in academic literature.

Monday 10 December 2012

Court Information in Many More Languages

The Court is continuing to expand its translations of key publications for potential applicants and the general public. Currently, the “Questions & Answers”, “The ECHR in 50 Questions”, and the leaflet “The Court in brief”, have been translated into the official languages of Council of Europe member States. At the moment, 139 new documents, in 39 languages, have been published online and more are to follow. A dozen new language versions of the video-clip on the Court have also been released (see here). According to the Court, more language versions of these publications and videos will be released in the coming weeks, including in Chinese, Japanese, and Arabic.

For the available materials, see this part of the Court's website.

Friday 7 December 2012

Book on European Court in the Post-Cold War Era

Dr James Sweeney of the University of Durham has written a very interesting monograph on the intersection of the universality of human rights and the specifics of transitional justice, with the European Court as its case study. The book, entitled 'The European Court of Human Rights in the Post-Cold War Era: Universality in Transition', was published last week with Routledge. This is the abstract:

The European Court of Human Rights in the Post-Cold War Era: Universality in Transition examines transitional justice from the perspective of its impact on the universality of human rights, taking the jurisprudence of the European Court of Human Rights as its detailed case study. The problem is twofold: there are questions about differences in human rights standards between transitional and non-transitional situations, and about differences between transitions.

The European Court has been a vital part of European democratic consolidation and integration for over half a century, setting meaningful standards and offering legal remedies to the individually repressed, the politically vulnerable, and the socially excluded. After their emancipation from Soviet influence in the 1990s, and with membership of the European Union in mind for many, the new democracies of Central and Eastern Europe flocked to the Convention system. The voluminous jurisprudence of the European Court of Human Rights can now give us some clear information about how an international human rights law regime can interact with transitional justice. The jurisprudence is divided between those cases concerning the human rights implications of explicitly transitional policies (such as lustration), and those that involve impacts upon specific democratic rights during the transition. The book presents a close examination of claims by states that transitional policies and priorities require a level of deference from the Strasbourg institutions. The book proposes that states’ claims for leeway from international human rights supervisory mechanisms during times of transition can be characterised not as arguments for cultural relativism, but for ‘transitional relativism’.
Congratulations, James!

Thursday 6 December 2012

Deportation of Children Judgment

It is my pleasure to have a guest blog today by dr Maarten den Heijer, former colleague and a specialist in European migration law. He has been so kind to comment on the judgment of Butt v Norway, delivered by the Court earlier this week:

Court prohibits deportation of Pakistani siblings from Norway

Coincidentally or not, a series of complaints in recent years against Norway has allowed the European Court of Human Rights to flesh out the principles that apply to the expulsion of families that have acted fraudulently in obtaining a residence status. One key issue in this type of cases is the question whether fraudulent conduct of the parents (but also the simple refusal to leave the country despite an order to do so) should also be attributed to the children, who in the meantime may have developed strong ties with the host country. In the Court’s latest judgment on the issue in Butt v Norway, the Court clarifies that it is generally allowed to equate the residence status of a child with that of the parent, but it also stresses that the independent interests of children warrant serious examination and that the moment at which a child learns that his status is precarious, is relevant in taking a decision on expulsion.

The applicants were brother and sister Johangir Abbas and Fozia Butt, Pakistani nationals who were born in 1985 and 1986 respectively and live in Oslo. They arrived in Norway in 1989 with their mother and were granted a residence permit on humanitarian grounds. In 1999 their permits were withdrawn however because their mother had failed to disclose to the immigration authorities that the family had left Norway and returned to Pakistan from 1992 to 1996. Their mother went into hiding in 2000-2001, was expelled from Norway in 2005 and died in Pakistan in 2007. The siblings were living with their aunt and uncle who were legally resident in Norway.

In comparable cases, the Court normally stresses that not much weight can be accorded to ties with the host country that have developed whilst it was known that the prospects of future residence are precarious (e.g. Omoregie v Norway; Antwi v Norway). In Nunez v Norway however, the Court added that children should not always suffer the negative consequences of fraudulent conduct of a mother and that the authorities should always examine the effects an expulsion has on the possibilities of children to enjoy private and/or family life as protected by Article 8 ECHR. The Court considered that ‘exceptional circumstances’ may make it necessary to accord primacy to the interests of the children – even if that would imply that a parent must be allowed residence as well.

The Court further develops this reasoning in Butt. In determining whether ‘exceptional circumstances’ are present, the Court makes several interesting points. The first is that it agrees with the approach of the Norwegian court that a general migration policy approach is allowed “of identifying children with the conduct of the parents”, i.e. of imputing fraudulent conduct of the parents also to the children. The Norwegian court had stressed the importance of this approach, for otherwise there would be a great risk that parents would exploit the situation of the children to secure a residence permit. But the Court adds that in this case there was no such risk of exploitation, since the mother had already died and could therefore not benefit from any decision taken in respect of the children. Consequently, less weight is to be accorded to general interests of immigration policy.

A novel and particularly significant consideration of the Court is its finding that the strong ties of the Butt siblings with Norway had already been formed before they became aware of their mother’s fraudulent conduct. They cannot therefore, in the opinion of the Court, until that moment be reproached for having stayed in Norway knowing that their stay was legally precarious. This implies that more weight is to be accorded to protecting the ties the siblings have established with Norway. Further, as in Nunez, the Court notes the delays on the part of Norway to decide upon deportation of the siblings, which puts into question the pressing character of immigration considerations as to their removal. Balancing all relevant interests at issue (the Court notes furthermore the relatively minor offences committed by the brother that had also been advanced by Norway as justification for expulsion), the Court concludes that Norway would overstep its margin of appreciation if it would deport the siblings.

The Court’s focus on the moment at which children become aware of their irregular residence status may have considerable ramifications, as one may expect especially younger children to often be ignorant about their status or possible abuse or fraud of their parents. It will be very interesting to see whether the Court will in future cases indeed accord full weight to ties built up with the host State before the precarious status became known to the child. If such ties are to be taken more seriously than previously thought, immigration authorities may well be forced to widen up substantially the ‘exceptional circumstances’-formula that the Court first laid down in Nunez.

Maarten den Heijer, assistant professor of international law, University of Amsterdam

Wednesday 5 December 2012

New Academic Articles on the Convention

The newest 'Current Contents Selection' of my home base SIM has been put online. It includes the following ECHR-related articles (I am only mentioning the ones I did not refer to before on this blog). First off, the Cambridge Law Journal (vol. 71, no. 3, 2012) contains two articles about Strasbourg:

* D. Mead, 'Kettling comes to the boil before the Strasbourg Court: is it deprivation of liberty to contain protesters en masse?', pp. 472-475.
* C. Simmonds, 'Paramountcy and the ECHR: a conflict resolved?' pp. 498-501.
Other articles are:

* K. Henrard, 'Duties of reasonable accommodation in relation to religion and the European Court of Human Rights: a closer look at the prohibition of discrimination, the freedom of religion and related duties of state neutrality', Erasmus Law Review, vol. 5, no. 1 (2012). This is the abstract:

This article aims to answer the question of whether duties of reasonable accommodation on the basis of religion can and should be identified by the European Court of Human Rights. Throughout the article, it is emphasised that duties of reasonable accommodation are ultimately about realising equal opportunities and thus substantive equality by levelling out the playing field and evening out barriers to full participation. Duties of differential treatment under the prohibition of discrimination and the prohibition of indirect discrimination are both general in application and, arguably, provide a solid basis for duties of reasonable accommodation, including those relating to religion. Consequently, it is argued that identifying these duties of reasonable accommodation would seem to be a logical development of the Court’s jurisprudence. It will be argued that the potential tension with the prohibition of discrimination (regarding those that cannot benefit from the accommodation measures) can be solved when an asymmetrical approach to the scrutiny of suspect grounds is adopted. Similarly, the apparent conflict with duties of state neutrality under the freedom of religion disappears when an inclusive vision of state neutrality is followed. When reasonable accommodation measures trigger controversies, this should be countered by awareness raising about the intrinsic connection of reasonable accommodation measures with substantive equality.

* P. Thielbörger, 'Judicial passivism at the European Court of Human Rights', Maastricht Journal of European and Comparative Law, vol. 19, no. 3 (2012) pp. 341-347.
  * C. Guthrie, 'Scottish limitations to testamentary freedom and freedom of religion under Article 9 ECHR',
Aberdeen Student Law Review, vol. 3 (2012) pp. 78-99. This is the abstract:

The writing of a Will may be regarded as an action in life carrying with it the reasonable expectation that its contents will be adhered to. Whilst, in general, anybody with the capacity to do so may leave a Will distributing the entire or part of his estate as a mortis causa trust on his death, testamentary freedom in Scotland is subject to certain limitations. Some manifestations of religious belief require specific observances on death which could be prevented by these limitations. Three such limitations to testamentary freedom, namely restrictions arising from the concept of legal rights, immoral Will conditions and the regulations surrounding the disposal of the corpse, have the capacity to affect directly the freedom to manifest religion which is protected under Art.9(1) of the ECHR. This paper will contend that whilst limits to testamentary freedom may interfere with the freedom to manifest religious belief, such restrictions are justifiable under Art.9(2) of the ECHR. It is, therefore, concluded that while interference may occur, the three limitations to testamentary freedom do not contravene Art.9 of the ECHR.