Friday 26 July 2013

Blog Summer Break

The European Court of Human Rights has updated the case-law page of its website (and I am not talking about the search engine HUDOC here). This page now includes the regularly updated Reports of Judgments and Decisions, a selection which permits outsiders to see which part of its jurisprudence is considered to be the most important. It also includes documents with the full list of the Court's judgments from its very beginning, links to translations of judgments, a note on the mode of citation, and information on training and information on the Court's case-law. A whole treasure trove as well as a very easy way into the by now extremely extensive case-law of the Court.

And with this post, the ECHR blog is taking a summer break. Kind regards to all readers, coming from the Danish Institute of Human Rights whose hospitality I am enjoying as a guest researcher currently. Have a great summer!

Thursday 25 July 2013

Book on NHRIs with ECHR Chapter

The book edited by Katrien Meeuwissen and Jan Wouters (both at Leuven University), entitled National Human Rights Institutions in Europe Comparative, European and International Perspectives has now been published. It includes my chapter 'The Court’s Ears and Arms: National Human Rights Institutions and the European Court of Human Rights'This is the abstract of that contribution:

This book chapter explores the ways through which human rights protection in the European system can be improved by national human rights institutions (NHRIs). NHRIs can play a key role in strengthening the supervision and implementation of the European Convention of Human Rights (ECHR) before, during and after the procedure in Strasbourg. In the first phase, NHRIs can help to better inform the public about the Convention system, specifically about the admissibility criteria, and give advice to potential applicants. During the proceedings before the European Court, NHRIs can bring in an independent national perspective - or as a group of NHRIs, a comparative European perspective - by way of a third party intervention. Finally, once the Court has delivered its judgment, NHRIs can facilitate implementation nationally through their advisory, agenda-setting and watchdog functions. In doing so, NHRIs can be highly important channels of information from the national level to the European Court and vice versa.

Monday 22 July 2013

ECHR Readings

With temperatures in much of Europe rising higher, here is a new batch of ECHR-related readings. The new edition of the Human Rights Law Review includes two ECHR-related articles:

Giulio Itzcovich, 'One, None and One Hundred Thousand Margins of Appreciations: The Lautsi Case'
* Ingrid Leijten, 'From Stec to Valkov: Possessions and Margins in the Social Security Case Law of the European Court of Human Rights'

Also, the 2013 edition of the European Yearbook on Human Rights has been published. The ECHR-related contents are the following:

* Brigitte Ohms, Tatjana Cardona, Elisabeth Handl-Petz, Leonore Lange, 'The Human Rights Jurisprudence of the European Court of Human Rights in 2012'
* Jean Paul Jacqué, A propos de Nada contre Suisse: Les résolutions du Conseil de Sécurité devant la Cour européenne des droits de l’Homme'
* Dominika  Bychawska-Siniarka, 'Why (and How) the Committee of Ministers Needs to Be Reformed in Order to Enhance Implementation of ECtHR Judgments'

Monday 15 July 2013

Asylum Seekers from Iraq Judgments

It is my pleasure to introduce another guest post on the blog, by expert colleague on migration law, Maarten den Heijer, on the European Court's recent Iraq asylum cases:

Court: Christian asylum seekers from Iraq can internally relocate
Maarten den Heijer, assistant professor of international law, University of Amsterdam

With summer recess closing in, the Court gave judgment in no less than eight asylum cases brought against Sweden, all concerning the deportation of failed asylum seekers to Iraq (see the press release summarizing all judgments). In all cases, the Court concludes that expulsion would not violate Article 3 of the Convention (the prohibition of inhuman treatment). Since Iraq continues to be one of the main countries of origin of asylum seekers in the EU, the judgments give valuable guidance for asylum authorities across Europe. They signify, in particular, that the general level of violence in Iraq is – despite the widely reported increase of sectarian violence in the last few months – of insufficient magnitude to indicate a need for protection. And although particularly vulnerable groups such as religious minorities may face a real risk of inhuman treatment upon return, they can have recourse to an internal protection alternative. The latter conclusion may be expected to have considerable ramifications, given the high number of Christian asylum seekers from Iraq in various European countries.

Two of the judgments deal with asylum seekers who argued to be the victim of honour-related crimes. The other six judgments concern members of the Christian minority alleging persecution on the basis of their religion.

In respect of the two honour-crime complaints (the cases of D.N.M. and S.A.), the Court observes that the Iraqi authorities provide insufficient protection against honour-related crimes, noting the high level of social acceptance of this crime in Iraq. However, since the danger emanates from relatives, the Court considers that both applicants can relocate to other regions in Iraq, where family members have no means and connections to find them. In examining the existence of an internal flight alternative, the Court employs the criteria developed in its previous case law (see esp. Sufi and Elmi v the UK), i.e. whether there is a real risk of harm in the other region; whether the person can gain admittance to that region; and whether the general circumstances prevailing in that part allow for a living in relative safety. These criteria correspond to those laid down in Article 8 of EU Qualification Directive 2011/95/EU.

The six other judgments follow up on F.H. v Sweden of 2009, also concerning a Christian from Iraq. In that case, the Court found that there was no State-sanctioned persecution of Christians and that the applicant would be able to seek the protection of the Iraqi authorities if he felt threatened and that the authorities would be willing and in a position to help him. The Court now adopts a different line of reasoning – in all six judgments. It notes that compared to 2008/09, violence against Christians has escalated in Iraq and refers to country assessments indicating that authorities in southern and central Iraq are generally unable to protect Christians and other religious minorities. The Court avoids determining however whether return to these regions would put Christians at a real risk of harm, because it considers that the rights of Christians are generally respected in the three northern governorates (Iraqi Kurdistan), which are relatively safe. The Court extensively examines the possibilities of Christians to relocate there and observes that there are no practical obstacles in that respect.

That the Court accepts a relocation possibility is especially relevant for countries such as the Netherlands, which considers Iraqi Christians to constitute a particularly vulnerable group (lowering their burden of proof for establishing a real risk of harm) for whom no internal relocation alternative exists.

All eight judgments were adopted by the same Chamber and with a voting ratio of five to two. The two dissenting judges Power-Forde and Zupancic question in particular the practical availability of an internal relocation alternative. They note that, whereas in the cases of Salah Sheekh v the Netherlands and Sufi and Elmi the Court spoke of ‘guarantees’ in the sphere of admittance and settlement in the relevant area, the majority now appears to lower the threshold by merely examining the likelihood of safe transit and gaining admittance. The dissenters argue that it follows from previous case law that governments must procure such guarantees before removal is executed, which did not happen in the present cases.

A further peculiarity is that the Court did not decide to join these cases, as provided for under Rule 42 of the Rules of Court. Given the factual similarities and indeed the textually identical rehearsal of general principles, the position of Christians in Iraq and the relocation alternative, one might have expected that the Court would at least have joined the two honor-crime complaints and the six complaints concerning Christians. For those who want to go into detail without having to read them all: M.Y.H. v Sweden was presented as the lead judgment (in the Christian cases).

Wednesday 10 July 2013

Three Important Judgments of this Week

As the Court (and this blog) are moving towards summer recess, let me highlight three important judgments the European Court of Human Rights delivered this week (every time with the press release summary of the Court itself - the first two are Grand Chamber judgments):

Vinter and Others v. The United Kingdom (Whole life orders should include the possibility of review but this should not be understood as giving the prospect of imminent release)

The Grand Chamber of the European Court of Human Rights held, by 16 votes to one, that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights. The case concerned three applicants’ complaint that their imprisonment for life amounted to inhuman and degrading treatment as they had no hope of release.

The Court found in particular that, for a life sentence to remain compatible with Article 3, there had to be both a possibility of release and a possibility of review. It noted that there was clear support in European and international law and practice for those principles, with the large majority of Convention Contracting States not actually imposing life sentences at all or, if they did, providing for a review of life sentences after a set period (usually 25 years’ imprisonment). The domestic law concerning the Justice Secretary’s power to release a person subject to a whole life order was unclear. In addition, prior to 2003 a review of the need for a whole life order had automatically been carried out by a Minister 25 years into the sentence. This had been eliminated in 2003 and no alternative review mechanism put in place. In these circumstances, the Court was not persuaded that the applicants’ whole life sentences were compatible with the European Convention.

In finding a violation in this case, however, the Court did not intend to give the applicants any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue in this case and were not the subject of argument before the Court. The only claim for just satisfaction that had been made was by Mr Vinter and the Court declined to award any damages.
See the early comments on the UK Human Rights Blog here.

Sindicatul “Păstorul cel Bun” v. Romania (Refusal to register a trade union for priests on account of the autonomy of religious communities is not unreasonable)

The Grand Chamber of the European Court of Human Rights held, by a majority, that there had been no violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights. The case concerned the refusal by the Romanian State of an application for registration of a trade union formed by priests of the Romanian Orthodox Church. Whereas the Court had held in its Chamber judgment that the Dolj County Court had not taken sufficient account of all the relevant arguments and had justified its refusal to register the union on purely religious grounds based on the provisions of the Church’s Statute, the Grand Chamber took the view that the County Court’s decision had simply applied the principle of the autonomy of religious communities. The court’s refusal to register the union for failure to comply with the requirement of obtaining the archbishop’s permission was a direct consequence of the right of the religious community concerned to make its own organisational arrangements and to operate in accordance with the provisions of its own Statute.

The Court held that in refusing to register the applicant union, the State had simply declined to become involved in the organisation and operation of the Romanian Orthodox Church, thereby observing its duty of denominational neutrality under Article 9 of the Convention.
And finally, Vona v Hungary (Hungarian authorities’ dissolution of association involved in anti-Roma rallies and paramilitary parading was not disproportionate)

The European Court of Human Rights held, unanimously, that there had been: no violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights. The case concerned the dissolution of an association on account of the anti-Roma rallies and demonstrations organised by its movement.

The Court recalled that, as with political parties, the State was entitled to take preventive measures to protect democracy against associations if a sufficiently imminent prejudice to the rights of others undermined the fundamental values upon which a democratic society rested and functioned. In this case, a movement created by Mr Vona’s association had led to demonstrations conveying a message of racial division, which, reminiscent of the Hungarian Nazi Movement (Arrow Cross), had had an intimidating effect on the Roma minority. Indeed, such paramilitary marches had gone beyond the mere expression of a disturbing or offensive idea, which is protected under the Convention, given the physical presence of a threatening group of organised activists. Therefore, the only way to effectively eliminate the threat posed by the movement had been to remove the organisational backup provided by the association.

Monday 8 July 2013

New Book on Pilot Judgment Procedure

A new book on the Court's pilot judgment procedure has been published by Martinus Nijhoff Publishers. It is entitled 'The Pilot-Judgment Procedure of the European Court of Human Rights' and was written by Dominik Haider of the University of Vienna. This is the abstract of the book:

Structural human rights deficiencies in the member states of the European Convention of Human Rights have caused numerous individual applications to the European Court of Human Rights and are a considerable factor in the Court's persistent overload crisis. The Pilot-Judgment Procedure was devised to tackle these structural deficiencies and has become an important instrument of the Court.
Dominik Haider examines to which extent the Pilot-Judgment Procedure is reconcilable with the European Convention on Human Rights. After an analysis of the member states’ obligations to resolve structural deficiencies, the author asks if the European Court of Human Rights is empowered to take the procedural steps which are characteristic of the Pilot-Judgment Procedure. In particular, the Court's express orders are critically scrutinised.  
For more on pilot judgments, see also my own previous writings here and the book by Leach and others here.

Friday 5 July 2013

New ECHR Academic Articles

The newest update of human rights "current contents" (June 2013), from a very wide range of academic sources, has been put online by our SIM documentation team. The articles specifically related to the European Convention and the European Court include:  
* F. Dorssemont, 'The right to form and to join trade unions for the protection of his interests under Article 11 ECHR: an attempt "to digest" the case law (1975-2009) of the European Court on Human Rights', Fordham International Law Journal, vol. 36, no. 2 (2013), pp. 185-235.

* B. de Wilde, 'A fundamental review of the ECHR right to examine witnesses in criminal cases', International Journal of Evidence and Proof, vol. 17, no. 2 (2013), pp. 157-182.

* J. Gerards, 'How to improve the necessity test of the European Court of Human Rights', International Journal of Constitutional Law, vol. 11, no. 2 (2013), pp. 466- 490.
* E. Ireland, 'Do not abort the mission: an analysis of the European Court of Human Rights case of R.R. v. Poland', North Carolina journal of international law and commercial regulation, vol. 38, no. 2, (2012/13), pp. 651-696.
* M. Rhinehart, 'Abortions in Ireland: reconciling a history of restrictive abortion practices with the European Court of Human Rights' ruling in A., B. & C. v. Ireland', Penn State Law Review, vol. 117, no. 3 (2012/13), pp. 959-978.
The American University International Law Review includes two ECHR-related articles in its volume 28 (2012/13), issues 2 and 3 respectively:
* E. Raulston, '(Un)justifiable? A comparison of electoral discrimination jurisprudence at the European Court of Human Rights and the Constitutional Court of Bosnia and Herzegovina', pp. 669-706.
* E. Lang, 'A disproportionate response: Scoppola v. Italy (no. 3) and criminal disenfranchisement in the European Court of Human Rights', pp. 835-872.
Finally, the European Human Rights Law Review in its issue no. 3 (2013) features:
* J. Costa, 'The relationship between the European Court of Human Rights and the national courts', pp. 264-274.
* R. Ó Fathaigh, 'Article 10 and the chilling effect principle', pp. 304-313.

Thursday 4 July 2013

Article on Environmental Litigation at the ECtHR

Riccardo Pavoni of the University of Siena has posted a paper on SSRN entitled 'Public Interest Environmental Litigation and the European Court of Human Rights: No Love at First Sight'. The paper will be published later on in: F. Lenzerini & A.F. Vrdoljak eds., International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature. This is the abstract:
This paper considers the doctrines and principles that are available to the ECtHR in order to dismiss in limine those environmental claims that are regarded as brought in the name of the public interest or common good as such. Such principles emerge, in particular, from the victim requirement and associated prohibition of actio popularis under the ECHR system and from the tests of applicability of ECHR provisions as developed in the Court’s jurisprudence. The analysis focuses on the Court’s environmental decisions relating to the right to private life under Article 8 ECHR and the right to a fair trial under Article 6 ECHR. These are indeed the provisions which have generated the largest body of environmental jurisprudence and which provide the most interesting insights into the past, present and future of ECHR environmental litigation with a public interest/collective dimension.

Moreover, the study addresses the ECtHR jurisprudence relating to the standing of NGOs, as well as the purpose and scope of procedural environmental rights under the ECHR according to certain innovative, recent decisions of the Court. With a view to showing that the absolute inadmissibility of public interest environmental litigation under the ECHR system is largely a false myth, the paper draws attention to various environmental cases adjudicated by the ECtHR and denoted by a collective dimension, especially given the large number of individuals affected by the alleged ECHR violations and the breadth of the geographical area in question. Such cases show that individualized justice in environmental disputes is somehow fictitious, ie, suggested by the specific requirements of European human rights litigation, but out of tune with the nature of most environmental problems.

Tuesday 2 July 2013

Article on Margin of Appreciation and Environmental Law

The newest issue of Global Constitutionalism (Vol. 2, Issue 2, July 2013) includes an article on the margin of appreciation and environmental law. The article, by Chris Hilson of the University of Reading, is entitled 'The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action'. This is the abstract:
Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.

Monday 1 July 2013

New Book on European Court Criticisms

Spyridon Flogaitis, Tom Zwart, and Julie Fraser have edited the book 'The European Court Of Human Rights And Its Discontents. Turning Criticism into Strength' which has just been publsihed with Edward Elgar Publishing. This is the abstract:

The European Court of Human Rights has long been part of the most advanced human rights regime in the world. However, the Court has increasingly drawn criticism, with questions raised about its legitimacy and backlog of cases. This book for the first time brings together the critics of the Court and its proponents to debate these issues. The result is a collection which reflects balanced perspectives on the Court’s successes and challenges.
Judges, academics and policymakers engage constructively with the Court’s criticism, developing novel pathways and strategies for the Court to adopt to increase its legitimacy, to amend procedures to reduce the backlog of applications, to improve dialogue with national authorities and courts, and to ensure compliance by member States. The solutions presented seek to ensure the Court’s relevance and impact into the future and to promote the effective protection of human rights across Europe.

Containing a dynamic mix of high-profile contributors from across Council of Europe member States, this book will appeal to human rights professionals, European policymakers and politicians, law and politics academics and students as well as human rights NGOs.
These are the contributors: L. Bojin, M. Bossuyt, A. Bradley, A. Burkov, N. Bürli, D. Davis, K. Dzehtsiarou, J. Fraser, J. Gerards, B. Kerr, P. Mahoney, E. Myjer, I. Opstelten, A. Sajó, A. Terlouw, W. Thomassen, L. Wildhaber, T. Zwart.