Friday 20 December 2013

Christmas Break

This blog and its blogger are going on a Christmas break. I wish all readers a very good and relaxing holiday season with hopefully many opportunities to be together with loved ones and to dream of a Europe and a world in which human rights will be more firmly protected for each and everyone. And what better way to illustrate this last post of 2013 than with a photo of the famous Strasbourg Christmas market. Joyeux Noël à tous!

Conference on Shifting Centres of Gravity in European Human Rights Protection

I am happy to announce a conference that the University of Iceland Human Rights Institute is organising on 6 and 7 March 2014 in Reyjkjavik. The conference, entitled 'Shifting Centres of Gravity in European Human Rights Protection' is organised by esteemed colleague Oddný Mjöll Arnardóttir. This is the idea of the conference:

The protection of human rights in Europe is at crossroads. The European Union (EU) is increasingly prioritising fundamental rights, for example by giving the Charter of Fundamental Rights the status of primary law and through the treaty-based obligation of accession to the European Convention on Human Rights (ECHR). Accession, once it takes place, expands the mandate of the European Court of Human Rights (ECtHR) and is likely to bring about fundamental structural changes to the system of human rights protection in Europe, as decisions of the ECtHR will be binding on the EU and its courts. However, pulling in a somewhat different direction than developments in EU law, the political momentum for bringing the responsibility for the protection of ECHR rights ‘home’ to the member states has been growing ever stronger. This repositioning of the centre of gravity of human rights protection is beginning to take shape in two new Protocols to the ECHR, which emphasise the principle of subsidiarity and the margin of appreciation enjoyed by the member states (Protocol No. 15), and introduce a preliminary reference procedure under the ECHR (Protocol No. 16). Finally, and in light of the crisis created by the overwhelming case-load of the ECtHR, the Brighton Declaration of 2010 has put the long-term review of the Court’s fundamental nature and role on the agenda before the end of 2019. Overall, therefore, the future of human rights in Europe faces major structural changes which could have significant consequences for access to justice and the quality of protection provided to victims of human rights violations. 

This conference will explore these themes from the perspective that current developments call for a critical assessment of classical approaches to the three-dimensional relationship between the ECHR, EU law and national law; of the theories and tools utilised to navigate this relationship; and of the effects current developments may have on victims and vulnerable groups.
Registration can be done here. The full programme is as follows and can be found in PDF here:

Day 1 - Thursday 6 March 2014
08:30-09:00 Registration
09:00-09:15 Opening of the conference
09:15-12:15 The three-dimensional relationship between the ECHR, EU law and domestic law: Coexistence and cross-fertilisation in the context of recent developments - Chair: Dr. Antoine Buyse, Associate Professor, Utrecht University
09:15-09:45 Professor Davíð Þór Björgvinsson, University of Copenhagen, former judge at the European Court of Human Rights
Title TBC (The ECHR perspective on coexistence and cross-fertilisation)
9:45-10:15 Professor Xavier Groussot, Lund University
Title TBC (The EU perspective on coexistence and cross-fertilisation)
10:15-10:35 Coffee break
10:35-11:05 Dr. Giuseppe Martinico, Centro de Estudios Politicos y Constitucionales, Madrid
Title: National judges between EU law and the ECHR: The legacy of Kamberaj
11:05-11:35 Professor Björg Thorarensen, University of Iceland
Title TBC (Protocol 16 ECHR)
11:35-12:15 Questions and panel discussion
12:15-13:30 Lunch at the University cafeteria
13:30-16:30 Subsidiarity and the margin of appreciation: In need of some re-thinking? - Chair: Professor Björg Thorarensen, University of Iceland
13:30-14:00 Professor Andreas Føllesdal, Oslo University
Title TBC (Subsidiarity)
14:00-14:30 Professor Geir Ulfstein, Oslo University
Title TBC (Subsidiarity)
14:30-14:50 Coffee break
14:50-15:20 Professor Niamh Nic Shuibhne, University of Edinburgh
Title TBC (The margin of appreciation in EU fundamental rights jurisprudence)
15:20-15:50 Dr. Basak Cali, Senior lecturer, University College London
Title TBC (ECHR margin of appreciation - ‘responsible courts doctrine’)
15:50-16:20 Professor Oddný Mjöll Arnardóttir and Dóra Guðmundsdóttir, adjunct lecturer,
University of Iceland
Title: Speaking the same language? Comparing margins of appreciation at
the ECtHR and the ECJ
16:20-17:00 Questions and panel discussion
19:00 Conference dinner at Snaps restaurant

Day 2 - Friday 7 March 2014

9:15-12:15 Access to justice and effectiveness of protection: the effects of current
developments on victims and vulnerable groups - Chair: Professor Oddný Mjöll Arnardóttir, University of Iceland
09:15-9:45 Professor Philip Leach, Middlesex University
Title TBC (Access to justice and effectiveness of protection)
09:45-10:15 Dr. Antoine Buyse, Associate Professor, Utrecht University
Title: Flying or landing? The future position of the pilot judgment procedure
in the changing European human rights architecture.
10:15-11:35 Coffee break
10:34-11:05 Lorna McGregor, Reader, University of Essex
Title TBC (Alternative dispute resolution at the ECtHR and ECJ)
11:05-11:35 Dr. Alexandra Timmer, researcher, Utrecht University
Title TBC (Vulnerable groups)
11:35-12:15 Questions and panel discussion
12:15-12:30 Closing of the Conference

Tuesday 17 December 2013

X v Latvia Child Abduction Grand Chamber Judgment

A few weeks ago, the Grand Chamber issued its judgment in the case of X. v Latvia ( 27853/09) on child abduction by one of the parents. The judgment relates amongst other to the "best interests of the child". I am happy to present a guest post by two experts, Christina Jeppesen de Boer and Merel Jonker, colleagues here at Utrecht University and connected to UCERF, the Utrecht Centre for European Research into Family Law. This is their commentary on the case:

Does the European Court of Human Rights get it “right” or “wrong” in international child abduction? 
Christina G. Jeppesen de Boer and Merel Jonker

Following the judgments of the European Court of Human Rights (ECtHR) in Neulinger and Shuruk v. Switzerland (841615/07), Sneersone and Campanella v. Italy (14737/09) and the earlier Chamber judgment of the Court in X v. Latvia, all cases concerning an application from an “abducting” mother, the final verdict of the Grand Chamber in X v. Latvia was awaited with much interest. There seems to be broad consensus that the ECtHR is getting it “wrong” in international child abduction cases. At least this seemed so in many contributions of this summer’s 2nd International Family Law and Practice Conference 2013, at London Metropolitan University. 

All the above-mentioned cases concerned a primary carer, a mother’s abduction of the child to her place of origin following a divorce or relationship breakup. In all cases, the national courts had ordered the return of the child (in some cases only after lengthy procedures at the appellate stage) and the application concerned the question whether these return orders infringed the mother’s and the child’s right to respect for family life. In all cases the ECtHR (eventually) found an infringement of article 8 European Convention on Human Rights (ECHR) based upon a too mechanical or not sufficiently detailed assertion of the child’s interests. 

Critics of these decisions argue that the ECtHR does not pay due consideration to the main purpose of the Hague Convention, the purpose being the immediate return of the child subject to specified exceptions that have been construed narrowly in case law. The principle of immediate return is based upon the principle that the court of the jurisdiction from which the child was abducted (the habitual residence) is better suited to assess which custody situation and possible relocation is in the best interest of the child. 


The facts of X v. Latvia were the following: the mother, originally Latvian, had settled in Australia where she gave birth to a child in 2005. At the time of giving birth, the mother was still married to another man than the father of the child. However, paternity (of any father) was initially not established. The mother lived together with the father, however, formally the father rented accommodation with the mother who received single-parent benefits. The mother acquired Australian nationality in 2007. The relationship between the mother and the father deteriorated and in 2008 she left Australia for Latvia taking the child, aged three years and five months, with her.

Subsequently, the father submitted an application to the Australian Family Court to establish parental rights in respect of the child and applied for the return of the child under the Hague Convention. The Family Court established his paternity on the basis of facts supplied by the father (no DNA testing). It is further established that the mother and father had had joint parental responsibility for their child since birth (retroactively) in a decision dated 6 November 2008. The mother had been invited to attend the hearing in person or to follow the hearing by telephone but had not done so. She also did not appeal the decision.

The request for the return of the child is received by the Latvian Central Authority in September 2008. The return request made by the Australian Central Authority was accompanied by an affidavit certifying, without prejudice to the issue of paternity (the decision by the Australian Family Court had not been given yet) that on the date the mother left Australia with the child, the father had exercised joint parental responsibility over the child.

The return request is heard in Latvia in two instances (district and regional court) with the father being present for the proceedings. Before the Latvian courts, the mother argued that the father did not have “custody” rights as he had not sought to have his paternity established prior to her departure from Australia. She further, amongst others, argued that the father had acted abusively, that the child was connected to Latvia and she also produced (at the appellate stage) a certificate from a psychologist stating that the child would suffer trauma if separated from the mother. In short, the Latvian courts ordered the return of the child thereby refusing to review Australian law concerning the custody rights of the father and further dismissing the arguments raised by the mother considering these to pertain to the merits of the custody issue which is for the court of the habitual residence to decide (the Australian Family Court). Following an “abduction” of the child in Latvia by the father, the Latvian Central Authority assisted the father in supplying information that authorized his right to return to Australia with his daughter. The mother then brought an application against Latvia before the ECtHR alleging an infringement of article 8 of the ECHR.


In our opinion there are three intrinsically relevant issues in this case. The first is the relationship between the Hague Convention and the ECHR (1). The second is the understanding of the requirement of the best interests of the child such as enshrined in article 3 of the UN Convention on the Rights of the Child (2). A third essential issue in this case concerns the question whether, in fact, there was a wrongful removal contravening custody rights given the fact that the mother was the sole legal parent at the time of the “abduction”. This last issue will not be dealt with in this case note.

(1) The first inherent issue concerns the relationship between the ECHR and the Hague Convention as a matter of hierarchy of conventions – does one of these conventions take precedence? The ECtHR found that the relationship between the two conventions involves “a combined and harmonious application” (para. 94) of both conventions. Article 8 of the European Convention on Human Rights is to be “interpreted in the light of the requirements of the Hague Convention” but also in the light of the Convention on the Rights of the Child, 1989 (CRC), (para. 93). The Court also held that “consideration of international provisions should not result in conflict or opposition (…) provided that the Court is able to perform its task in full”, i.e. to ascertain whether the requirements of the ECHR have been observed. Consequently, the Court stressed the harmony of conventions, yet also the obligation to ascertain independently the rights inherent to the ECHR. Although not stated directly this does involve precedence of the ECHR when the issue concerns the application of the Hague Convention by an ECHR member state. The concurring opinion of judge Pinto de Albuquerque is more direct as precedence is presumed (“the latter should prevail over the former”, para. 43 of the judgment). In our opinion the ECHR must have precedence, if one accepts that human rights are fundamental rights, the content being evolutive.

(2) An understanding of the child’s best interests – an understanding of these interests as relating to what is generally thought to be best for children as a group and the understanding of the requirement that a decision is in the (primary or paramount) interest of an individual child. The Hague Convention may be viewed to operate primarily on the understanding of what is best for children as a group. The assumptions being that the operation of the convention may prevent child abduction in the first place and that secondly the court of the child’s habitual residence is better suited to assess the interest of the individual child with respect to custody, care and possible relocation. The main exception to returning the child being narrowly construed to “grave risk” (article 13(b)). The understanding of what is best for children as a group may be viewed as a legal construction which may prove distant from the reality of the individual child, for example, in situations where the “abductor” is the primary carer who is unable or unwilling to return with the child. At this point it must be kept in mind that at the time of the draft of the Hague Convention, the issue was more the abduction by the other non-custodial parent. Since then underlying changes in national laws; the increasing allocation of custody rights to both parents also after divorce and for unmarried parents, even if one parent is obviously “a primary carer”, all lead to concerns with respect to the narrow exception which in most cases will result in a return order. Is the exception too narrow? Should the welfare of an individual child be subsumed under the generally constructed welfare of children? 

The dividing line between that which is considered to be best for children as a group and in the primary interest of an individual child is not clear from the CRC itself. The principle enshrined in article 3 relates to both contexts (CRC General Comment No. 14(2013), IV, A(b) and (c)). Nonetheless, the interests of an individual child cannot (necessarily) be understood “as being the same as those of children in general”. Article 3(1) requires that “the best interests of a child must be assessed individually” (CRC General Comment IV A(c)). When it comes to custody decisions the CRC comment stresses a best interest’s principle of the particular (individual) child stating explicitly that it is contrary to those interests “if the law automatically gives parental responsibilities to either or both parents”. Yet with respect to the Hague Convention no distinction is made, this convention is endorsed as a facilitator of the child’s best interests (CRC General Comment No. 14(2013), V, 1(c), No. 67/68). Consequently, the dividing line between an understanding of the best interest’s principle in relation to children as a group and the individual child is unclear. In our opinion the lack of clarity undermines any substantive content of this principle.  

We therefore believe that the ECtHR got it “right” in this case by stressing the assessment in relation to an individual child rather than paying “lip service” to the Hague Convention. This Convention may be viewed to provide a “greater good”, yet it cannot ignore the reality of the individual child in view of the fact that at times primary carers can also be the main abductors.

Monday 16 December 2013

Al-Dulimi UN Sanctions Judgment

It is my pleasure to introduce a guest post by my colleague here at SIM, dr Stephan Hollenberg, on the recent case of Al-Dulimi and Montana Management Inc v Switzerland, which focuses on UN sanctions. Stephan defended his PhD last year on judicial protection of human rights against decisions of the United Nations Security Council (UNSC). Here are his comments on the case:

Al-Dulimi and Montana Management Inc v Switzerland
Stephan Hollenberg

Mr Al-Dulimi allegedly was the finance manager for the Iraqi secret services under Saddam Hussein. His assets and of a company of which he was managing director have been frozen following a Security Council resolution imposing sanction measures against the ancient regime of Iraq, as implemented against him by Switzerland. Under this sanctions regime his assets not only had to be frozen but also confiscated and transferred to the Development Fund for Iraq.

In response, Mr Al-Dulimi complained before the Swiss Federal Court that he was not informed of the reasons underlying the decision to impose the sanction measures against him and he was not afforded any due process guarantees under article 6 ECHR. In 2008 the Swiss Court decided that it was not competent to engage in a judicial review of the implementation of the UNSC decision. Any decision on de-listing could according to the Swiss Court only be made by the relevant UNSC Sanctions Committee. Hereupon Mr Al-Dulimi filed a compaint with the ECtHR, among others, claiming a violation of his right to access to court.

The case raises the issue of precedence of obligations created by the UNSC over those under the ECHR, which the Court was confronted with earlier in the cases of Al-Jedda and Nada. Especially, the Nada case, concerning an individual directly targeted by UNSC sanctions against alleged financers of international terrorism, bears essential similarities to the present case. In the Nada case the Grand Chamber considered Switzerland to have violated Mr Nada’s rights to private and family life and his right to an effective remedy, by implementing too strictly the travel ban imposed by the UNSC, and by not affording him any possibility for review.

Presumption of Compliance
In the cases of Al-Jedda and Nada the Court developed and employed the interpretative technique of presumption of compliance. In those cases the Court established that in addition to maintaining international peace and security, the purposes of the UN include encouraging respect for human rights and fundamental freedoms as well. From this it derived that there must be a presumption that the UNSC does not intend states to take measures that would result in a breach of their obligations under international human rights law. Hence the Court determined that when the meaning of a particular provision of a UNSC resolution is unclear, the interpretation that harmonizes the obligation created by the UNSC most with the states’ obligations under international human rights law must be followed. It added that the presumption could be rebutted when the UNSC uses clear and explicit language to that effect. It did however not indicate explicitly what the consequences of such rebuttal would be. Even in the Nada case, in which it found a rebuttal of the presumption, it did not consider what the consequences thereof would be.

It was to be expected that the Court would employ this same interpretative technique in regard to the interferences with Mr Al-Dulimi’s human rights following from Switzerland’s implementation of the impugned UNSC resolution. However, the Court (Second Section) distinguished the Al-Dulimi from the Nada case, on the basis of a perceived difference in scope of discretion left by the UNSC for the implementation of the measures imposed by the relevant UNSC resolution. Subsequently, it employed the familiar concept of equivalent protection, which it developed in the context of obligations created by the EU (see Bosphorus). 
There are two problems with this approach. First, the scope of discretion left by the UNSC resolutions concerned in Al-Dulimi and Nada appears to be the same. Second, in regard to instances in which no scope of discretion is left by the UNSC the presumption of compliance would appear a more appropriate approach to follow than that of equivalent protection.

Scope of Discretion
For UNSC resolutions to become effective they need to be implemented by UN member states in their respective domestic legal orders. The UNSC usually formulates a certain aim or result that needs to be achieved, it is then for states themselves to determine how best to do that. Therefrom emanates a scope of discretion. However, in regard to the targeted sanctions regimes it can hardly be maintained that there is any scope of discretion for states. The obligation to freeze assets is phrased by the UNSC as an obligation of conduct, leaving hardly any scope of discretion for states to implement these measures as they deem fit. They have no other possibility but to freeze the assets of the individuals designated by the relevant UNSC sanctions committee. Moreover, this conduct (and result) may be interfered with if states would provide an opportunity for fair trial or an effective remedy to the individuals concerned. Therefore, despite the fact that the relevant resolutions remain silent on possibilities to afford due process guarantees while implementing these sanction measures, it must be assessed as falling outside the states’ scope of discretion. Thus providing such guarantees would go against the obligation created by these resolutions.

However, the Grand Chamber accepted in Nada that the UNSC had left states a certain scope of discretion. Similarly, the Court of Justice of the EU had held earlier in the Kadi case that such discretion existed in relation to the implementation of the targeted sanctions. These courts arrived at this conclusion by arguing that the UN Charter does not prescribe how states should implement UNSC resolutions, rather than looking at the text of the relevant resolution. These courts’ approach is not very compelling because if the UNSC would impose a clearly circumscribed obligation of conduct, then any scope of discretion that might emanate from the fact that the UN Charter does not prescribe how to implement that obligation is illusory. States can then do no other but to engage in the conduct prescribed. Moreover, following these courts’ reasoning every UNSC resolution would leave states a scope of discretion. However, in the present instance of the Al-Dulimi case, the Court accepted that the UNSC left no such scope. On the basis of this finding it distinguished it from the Nada case (see paragraph 117). It did not further clarify how it arrived at that determination. It only considered that such a difference exists. 

As was mentioned, this difference cannot be arrived at by relying on the argument of the UN Charter not prescribing how to implement, because that is exactly the same in both situations. However, also when comparing the two provisions concerned in the relevant UNSC resolutions a distinction is not immediately obvious. Especially when the limitation of the right to a fair trial in the present instance is compared to the limitation of Mr Nada’s enjoyment of his right to an effective remedy, it becomes clear that the relevant provisions are significantly similar. Both resolutions decide merely that states should take the measures prescribed against the individuals designated by the relevant UNSC Sanctions Committee. They do not explicitly address the issue of a fair trial or an effective remedy, but it is implied in the system of the centralized sanctions regime that such due process guarantees were not foreseen by the UNSC. Providing such guarantees at a domestic level would automatically impair the effectiveness of the centralized sanctions regime. It might result in a fragmented application of the sanction measures. Accordingly, there appears to be no difference in the scope of discretion left by the UNSC in regard to the two different sanction regimes. 
The UNSC resolution relevant to Mr Al-Dulimi does mention that ‘claims made by private individuals or non-government entities on [funds transferred to the Development Fund for Iraq] may be presented to the internationally recognized, representative government of Iraq.’ This might suggest that Mr Al-Dulimi’s only remedy foreseen by the UNSC is via the Iraqi government, and therewith a contrario excluding other possibilities. But the context of this provision indicates that it must be concerned with the claims of others than the targeted individual. Moreover, the Court does not consider this aspect of the provision at all. 

Equivalent Protection
After having distinguished Al-Dulimi from Nada, the Court engaged in an equivalent protection test. This test entails that if the Court is asked to review a state’s conduct that was strictly required by that state’s membership of an international organization, it presumes that the state did not act in contravention of the ECHR if the international organization in question protects human rights in a manner that is at least equivalent to the protection offered by the Convention. If a presumption of equivalent protection is then established this can only be rebutted when in a particular instance the protection was manifestly deficient. The Court employed and developed this test primarily in the context of the relationship between the ECHR and the EU.
Applying this test similarly in regard to the UNSC is highly remarkable. Especially, since the Court appears to have gone through a lot of effort in earlier cases in order to avoid applying it in that context, due to the special task and position of the UNSC (see the cases of Behrami; Beric; Kanlinic and Bilbija; Galic; and Blagojevic). In addition, it is hardly conceivable that an organization such as the UN would ever be able to provide a measure of equivalent protection to individuals directly affected by a UNSC resolution.  

Also, logically speaking it does not make sense to assess a situation concerning a UNSC decision that does not leave a scope of discretion within the context of the equivalent protection rather than consider it to be a rebuttal of the presumption of compliance. In this regard, the Court appears to make a distinction between latitude for interpretation following from ambiguous language and the scope of discretion. Such distinction is however difficult to maintain. Scope of discretion and room for interpretation are closely intertwined. Scope of discretion often emanates from what a resolution is silent about.

Moreover, if the presumption of compliance would only be employed in cases where there is a scope of discretion then the Court would assess a respondent state’s conduct that is not necessarily required by the UNSC. That state had an opportunity to implement the UNSC decision differently within the latitude left by the scope of discretion. Hence there is no conflict of norms. Therefore it cannot be maintained that the respondent state was under an obligation to give precedence to an obligation created by the UNSC over obligations under other international agreements, pursuant to article 103 of the UN Charter. Consequently, a rebuttal of a presumption by employing clear and explicit language would not be relevant, because the respondent state could have acted otherwise within the scope of discretion. 

Actually, this appears to be the result in the Nada case in which the presumption of compliance was rebutted but in which the Court also found a certain latitude for Switzerland to implement the sanctions in accordance with the ECHR. But this would mean that the whole doctrine of presumption of compliance (or at least the option for its rebuttal) loses its meaning. The UNSC will then never be able to override states’ obligations under the ECHR. That is a position one could defend, but perhaps it would be better if that would be phrased in clear and explicit language. 

Violation of Article 6
Whatever could be said of that, the Court concluded that no presumption of equivalent protection could be established and that therefore it had to fully scrutinize the lawfulness of the interference with the applicant’s right to a fair trial - just like the Grand Chamber did in regard to article 13 in the Nada case. In that sense, the present decision could also be seen as making explicit what remained unmentioned in the Nada case. There the Court did not explicitly apply the equivalent protection doctrine but did establish that the protection afforded at the UN level was not considered to be sufficient. That is to say, the Grand Chamber followed the Swiss Federal Court’s evaluation of such protection it made five years earlier. That was before all the recent amendments were made to the de-listing procedure, such as the institution of the Ombudsperson in 2009. In that sense, the Court’s Chamber in the Al-Dulimi case went a bit further and relied on a recent rapport by UN’s Special Rapporteur on the promotion and protection of human rights while countering terrorism (Ben Emmerson) in holding that the present Ombudsperson procedure does not afford sufficient guarantees. Therefrom it deduced that the mere Focal Point presently available to Mr Al-Dulimi, which obviously affords a lower level of protection than the Ombudsperson, can a fortfiori never provide sufficient guarantees. 

It has to be noted, however, that with regard to the possibility to ensure the individuals’ right to a fair trial there is an important difference between the targeted sanctions against people such as Mr Kadi and Mr Nada and those against Mr Al-Dulimi. The first two are anonymous individuals allegedly involved in financially supporting international terrorism. Such allegations can often only be substantiated by relying on confidential material, gathered by national intelligence agencies, which is not likely to be shared with the targeted individual or with foreign courts. In contrast, the question whether Mr Al-Dulimi was indeed the finance manager for the Iraqi secret services under Sadam Hussein is in principle publicly available information. In a cable, made public by Wikileaks, the US State Department, which already in 2008 foresaw this decision by the ECtHR, asked for additional information on the allegations against Mr Al-Dulimi. The cable notes that ‘Al-Dulimi denies he was ever a member of the Baath Party, and further denies he was "a director of investments for the Iraqi Intelligence Service" under Saddam Hussein.’ Therefore the US Embassy in Baghdad was instructed to ask the Iraqis whether they could provide further information about what Al-Dulimi did for the Saddam Hussein regime. According to the Iraqis it was public information that Mr Al-Dulimi held that position and that he was one of the senior officials of the former Iraqi regime. This statement might not be sufficient, but perhaps some official documents might do. At least this makes it easier to organize a fair trial for people such as Mr Al-Dulimi than for those such as Mr Kadi and Mr Nada. An example thereof can be found in the recent decision of EU’s General Court in the case of Makhlouf, concerning sanction measures against members of the Syrian regime.

The decision by the Second Section of the ECtHR is another example after decisions by the Grand Chamber (Nada) and the Court of Justice of the EU (Kadi) that the European judiciary is not going to back down and is seeking full confrontation with the Security Council. This obviously is putting member states in a very difficult situation. They are under two conflicting international obligations, which are very difficult to harmonize. This confrontational approach might eventually result in better protection at the UN level. The UNSC, seeing its efficacy and efficiency of action undermined by substantial annulments of domestic implementations, might be willing to adjust its measures to the requirements upheld by these courts. However, for such approach to be effective these courts need to maintain a dialogue with the Security Council. In that regard, the Second Section’s use of the equivalent protection doctrine in the Al-Dulimi case, which might indicate that it is willing to engage in such dialogue, is to be preferred over the Court of Justice’s decision in its latest Kadi case, in which it largely ignored the progress being made at the UN level. The difficulty, however, remains that equivalent protection at UN level is very unlikely ever to be achieved in regard to individuals directly affected by a Security Council decision. A mere possibility for review would probably not be sufficient, also substantive human rights guarantees would have to be in place. This will be very difficult to realize in the primarily inter-governmental setting of the UN.

Thursday 12 December 2013

Stricter Rules for Lodging Complaints at the European Court

Even long before a future entry into force of Protocol 15 to the ECHR which will render the time limits of applying to the Court shorter, changes are around the corner: as of 1 January 2014 a new rule 47 of the Rules of Court will enter into force. The changes, like many previous reforms are geared towards increasing the efficiency of handling complaints. It adds two requirements to the way in which complaints should be lodged with the Court:

1. Application forms sent to the Court must be completed in full and must be accompanied by copies of the relevant documents. A failure to do so, will lead to a rejection of the application. 

2. In addition, a change is made to "the interruption of the period within which an application must be made to the Court, that is, within six months from the final decision of the highest domestic court with jurisdiction; for the period to be interrupted, the application will now have to fulfill the conditions set out in Rule 47. The form must be sent to the Court, duly completed and accompanied by the relevant documents, within the period laid down by the Convention. Incomplete files will no longer be taken into consideration for the purpose of interrupting the running of the six-month period."

To enable applicants to lodge a complaint, a new simplified application form will be put on the Court's website on 1 January. More precision and due care is thus asked of the applicants. The full press release can be found here.

Wednesday 11 December 2013

René Cassin Competition 2014

The newest edition of the René Cassin Human Rights Moot Court has been launched. The French-language competition will take place at the European Court of Human Rights in Strasbourg on 10 and 11 April 2014. The time schedule, including deadlines for participation, can be found here. As in previous editions, the organisers emphasize that it is an entertaining legal exercise for students ("il s'agit de s'amuser avec le droit, pour le droit et autour du droit.").

The case itself, written this year by professor Jean-Pierre Marguénaud, about allegations against a cyclist of doping usage can be found here.

Friday 6 December 2013

New ECHR Readings

A number of new articles have recently been published, some in the most unlikely places (see the first one), on the European Convention on Human Rights. Please find an overview of these here: 

* Benny Spanier, Israel Issi Doron & Faina Milman-Sivan, ‘Older Persons’ Use of the European Court of Human Rights’, Journal of Cross Cultural Gerontology, vol. 28 (2013) pp. 407-420.
* Maarten den Heijer, ‘Shared Responsibility Before the European Court of Human Rights’, Netherlands International Law Review, vol. 60, no. 3 (2013).

* Triestino Mariniello, The ‘Nuremberg Clause’ and Beyond: The Legality Principle and Sources of International Criminal Law in the European Court's Jurisprudence, Nordic Journal of International Law, vol. 82, no. 2 (2013):

Legislative acts or constitutional courts’ decisions allowing the prosecution of alleged perpetrators of international crimes committed in the past continue to attribute to the legality principle a central role within domestic criminal proceedings or complaints before the European Court of Human Rights. This article assesses the evolution of the recent jurisprudence of the Strasbourg Court, which in the 2008 Korbely and Kononov cases for the first time extended the standards of the legality principle over war crimes and crimes against humanity. It examines the rationale for this development, which constitutes an attempt by the Court to restore a proper balance between substantive justice and individual protection, by ascertaining whether domestic convictions were consistent with the qualitative elements of the legality principle, such as accessibility and foreseeability. Through a detailed analysis of the European jurisprudence, the article argues that, although the new approach of the Court entails in abstracto a strengthening of individual safeguards from the arbitrariness of state power, the meaningful protection of the legality principle may be in concreto significantly narrow. The reasons for such a result are two-pronged: first, the Court seems to provide an interpretation of past law which radically diverged from the interpretation of the law in place in the legal system at the material time of the events; second, the international sources accepted by the Court as a valid basis for the applicants’ convictions – pursuant to the standards of the legality principle – were intended to create obligations only upon states, rather than individuals.