Here is a small overview of recent online case comments on a few of Strasbourg's most recent judgments. First off, on the I.B. v. Greece judgment a comment by my new Utrecht colleague Alexandra Timmer. The case related to HIV-based employment discrimination. Secondly, a number of comments on the much-debated case of Delfi v. Estonia on readers online comments: it was reported on both on Open Society Foundations, Strasbourg Observers, and the International Forum for Responsible Media Blog.
Monday 28 October 2013
To state that the European Court of Human Rights has a backlog of cases has become a mantra and a cliché. It has been used both to pity and to attack the Court. Both to criticise and to advise it. Relatively unnoticed, although the Court's president mentioned it already in January at the opening of the judicial year, is that the reforms following Protocol 14 to the Convention and the changes in the Court's internal procedures and methods of work have managed to turn the tide. Especially the backlog of clearly inadmissible cases has been reduced significantly, as the Court informed the outside world last week. A filtering section registrar has been appointed and single-judge formations have made a lot of headway in decreasing the backlog, although it is still significant. The backlog for this category of cases dropped to 38,200 in the last two years, with the total number of pending cases now at 111,350. Still a huge amount by any standard and with a relatively larger percentage of cases now needing more detailed attention, but at least the trend is now positive. Publishing these numbers this month undoubtedly is no pure coincidence. In November the Steering Committee for Human Rights (CDDH) of the Council of Europe will meet again. One of the items on the agenda will be the reform of the Court. This is the text of the Court's press release:
The European Court of Human Rights has confirmed that the methods employed since the entry into force of Protocol No. 14 to the European Convention on Human Rights, on 1 June 2010, have been successful in reducing the backlog of cases which are clearly inadmissible.
Since the entry into force of Protocol No. 14, judges have been sitting in Single Judge formations, assisted by rapporteurs from the Court’s Registry, to decide cases that are clearly inadmissible or that can be struck out without further examination. To optimise this mechanism, initially, some two thirds of incoming cases were placed under the organisation of a new Filtering Section tasked with streamlining the new procedure and ensuring that best practices were adopted for the treatment of incoming applications as well as the older cases still waiting for examination. These methods, which have in the meantime been extended to all incoming cases, have proved successful in diminishing the backlog of cases allocated for examination by a single judge. At its highest, on 1 September 2011, the backlog of these cases had reached over 100,000 (the total number of cases pending having reached 160,200 at that time). On 1 October 2013 the backlog of cases allocated for examination by a single judge had dropped to 38,200, the total number of pending cases being 111,350.
This practice of treating incoming applications has now been confirmed and a Filtering Section Registrar has been appointed. The Filtering Section is made up of the judges appointed as Single Judge (currently 36) and the Registry rapporteurs who have been appointed by the President of the Court to assist the Single Judges. It has responsibility for supervising the Court’s case-load of incoming applications and assuring the speedy allocation of cases to the correct judicial body for decision.
The Court will continue to pursue other available means of improving its organisation and working methods with a view to fulfilling as effectively as possible the role entrusted to it by the European Convention on Human Rights.
Tuesday 22 October 2013
This coming Thursday, 24 October, a seminar is being organised at the European Court on the press that the Court is getting, a different aspect of the freedom of expression! It will address how the Court and its judgments are portrayed in the press and how the Court itself is active in the media. The seminar, held in French, is entitled 'La Cour européenne des droits de l’homme dans la presse' and is co-organised with the University of Strasbourg. This is the programme:
9h00 Mot de bienvenue : M. Dean SPIELMANN, Président de la CourEDH
(Suivi d’un mot de bienvenue et d’introduction des organisateurs du colloque)
Le point de vue de la Cour 9h15-10h30
Présidence : M. Dean SPIELMANN, Président de la CourEDH
- Les interventions des juges, et notamment des Présidents de la CourEDH, dans la presse écrite – pratiques et/ou stratégies
M. Jean-Paul COSTA, ancien Président de la CourEDH, Président de l’IIDH
et Mme Françoise TULKENS, ancienne Vice-présidente de la CourEDH
- les interventions d’un juge national dans la presse écrite de son pays d’origine :
l’exemple allemand :
Mme Angelika NUSSBERGER, Juge de la CourEDH élue au titre de l’Allemagne
Perspectives comparées 11h00-13h00Présidence : Mme Élisabeth LAMBERT ABDELGAWAD, Directrice de recherche au CNRS
- La CourEDH dans la presse britanniqueM. Jérémie GILBERT, Senior Lecturer, Middlesex University, London
- La CourEDH dans la presse française
Mme Hélène SURREL, Professeure, IEP, Lyon
- La CourEDH dans la presse polonaise
Mme Katarzyna GRABARCZYK, Maître de Conférences, IDEDH, Montpellier
- La CourEDH dans la presse suisse
M. Luc GONIN, Chercheur post-doctoral, Université de Neuchâtel
Déjeuner sur placeAprès-midi 14h15-17h30Enjeux et défis de la communication sur la Cour européenne des droits de l’homme
Présidence : M. Pascal DOURNEAU-JOSETTE, Chef de Division, Greffe de la CourEDH, Professeur associé à l’Université de Strasbourg
Rapport introductif: La création d’un Service de Presse à la Cour de Strasbourg : enjeux passés, présents et futurs
M. Patrick TITIUN, Chef du Cabinet du Président de la CourEDH, Responsable du Service de Presse de la Cour
Modératrice : Mme Nicole GAUTHIER, Directrice du Centre Universitaire d’Enseignement
du Journalisme, Université de Strasbourg, ancienne Journaliste à Libération
- M. Gilbert REILHAC, Correspondant pour Reuters des Institutions européennes à Strasbourg
- M. Denis MASMEJAN, Journaliste, Le Temps
- Mme Jutta HARTLIEB, Correspondante du service allemand de l’AFP à Strasbourg
- M. Guillaume DIDIER, Cabinet conseil Vae Solis Corporate (Paris),
ancien Porte-parole de la Chancellerie,
- Me Caroline MECARY, Avocate (Paris)
- Mme Julie SEDEL, Maître de Conférences, Université de Strasbourg (SAGE)
Avec la participation de M. COSTA, Mme TULKENS, Mme NUSSBERGER et M. TITIUN
M. Nicolas HUBE, Maître de Conférences, Université de Paris 1
More information can be found here.
Thursday 17 October 2013
Matrix Chambers and Middlesex University School of Law are co-organising a short course in 'Developments in European and International Human Rights Practice'. It will focus on the latest developments and emerging issues in European and international human rights practice: themes and systems, law and practice. Matrix Chambers will host each session. The course is aimed at a broad range of participants, including students, practising lawyers, NGOs, civil servants and academics. There will be seven two hour sessions (on Tuesdays, 6pm – 8pm) with the first session on 5 November 2013.
Prof. Philip Leach of EHRAC will host the third session with Jessica Simor QC (Matrix Chambers) on: Tackling systemic violations in Europe - developments at the European Court of Human Rights.
Places are free, but registration is required. To register, please email Christiana Rose at the Middlesex University School of Law: c.rose at mdx.ac.uk .
Tuesday 15 October 2013
I am happy to announce that my article 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges', which was published in 2009 in the Greek legal journal Nomiko Vima, has now been translated into Ukrainian and re-published in the Ukrainian journal European Law (No. 1-2, 2013, pp. 84-100). Hopefully that will make it more accessible (the weblink works only intermittently it seems) and useful to academics and practitioners there, although of course in the meantime many new developments have taken place at the Court in this regard.
And then for some other updates on recent ECHR-related writings: the latest issue of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Vol. 73, no. 3, 2013) includes an article written by Helen Keller and Cedric Marti titled ‘Interim relief compared: Use of interim measures by the UN Human Rights Committee and the European Court of Human Rights’.
The most recent issue of the Nordic Journal of International Law (Vol. 82, no. 3, 2013) includes an article written by Maria Eriksson titled ‘The Prevention of Human Trafficking – Regulating Domestic Criminal Legislation through the European Convention on Human Rights’.
On Strasbourg Observers, Ronan Ó Fathaigh and Dirk Voorhoof have written a case comment entitled ‘Newspaper Editor Criminally Liable for Senator’s Op-Ed, But Prison SentenceViolated Article 10: Belpietro v. Italy’.
Finally, a special issue of the Utrecht Law Review (vol. 9, issue 4, September 2013, free and open access!) is dedicated to 'Law Should Govern: Aspiring General Principles for Transnational Criminal Justice' and includes a number of articles pertaining to the ECHR:
* Lorena Bachmaier Winter, 'Transnational Criminal Proceedings, Witness Evidence and Confrontation: Lessons from the ECtHR’s Case Law'
* Radha Dawn Ivory, 'The Right to a Fair Trial and International Cooperation in Criminal Matters: Article 6 ECHR and the Recovery of Assets in Grand Corruption Cases'
Thursday 10 October 2013
Professor Christoph Grabenwarter of the Vienna University of Business and Economics has published his extensive commentary (600 pages) on the ECHR in English now with Hart Publishing. The book is entitled 'The European Convention for the Protection of Human Rights and Fundamental Freedoms A Commentary'. Although it is a welcome addition to the existing ECHR commentaries and handbooks, it is unfortunately on the very expensive side, with a price of 205 GBP, putting it only within the financial grasp of institutions rather than individuals. Hopefully a more affordable paperback version will follow! This is the abstract:
The European Convention on Human Rights (ECHR) entered into force on 3 September 1953 with binding effect on all Member States of the Council of Europe. It grants the people of Europe a number of fundamental rights and freedoms (right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination) plus some more by additional protocols to the Convention (Protocols 1 (ETS No. 009), 4 (ETS No. 046), 6 (ETS No. 114), 7 (ETS No. 117), 12 (ETS No. 177) and 13 (ETS No. 187)).
Any person who feels his or her rights under the ECHR have been violated by the authorities of one of the Member States can bring a case to the European Court of Human Rights, established under the Convention. The States are bound by the Court's decisions. The Committee of Ministers of the Council of Europe make sure that the decisions are properly executed. Today the Court receives thousands of petitions annually, demonstrating the immense impact of the Convention and the Strasbourg Court.
Professor Grabenwarter's Commentary deals with the Convention systematically, article-by-article, considering the development and scope of each article, together with the relevant case-law and literature.
Wednesday 9 October 2013
A number of new papers on the ECHR have recently been put on the Social Science Research Network. Here is a short overview:
* Jörg Polakiewicz, ‘EU Law and the ECHR: Will EU Accession to the European Convention on Human Rights Square the Circle?’ (working paper)
The article examines how the draft Agreement on Accession of the EU to the ECHR, which was agreed at the negotiators’ level on 5 April 2013, deals with issues of EU law. The rather complex clauses on attribution and responsibility as well as procedural arrangements such as the co-respondent mechanism and the prior involvement of the ECJ can be explained by the concern to accommodate the specific characteristics of the Union and Union law. At the same time, it is necessary to preserve the essential features of the Convention system, such as the authority and prerogatives of the ECtHR, the equal treatment of Contracting Parties and the subsidiary nature of the protection mechanism. The importance and urgency of EU accession to the ECHR to achieve legal certainty and coherence are underlined. The recent fundamental rights case law of the ECJ reveals a trend to interpret the provisions of the EU Charter usually in isolation from the jurisprudence emerging from other human rights instruments. The ECJ draws only sporadically on international human rights sources, insisting that it remain the final and authoritative arbiter of their meaning and impact within the EU. ECJ case law focuses increasingly on the EU Charter, thus raising doubts about the continuing convergence between the two European human rights systems. Against this background, rapid EU accession to the ECHR becomes even more important. The draft accession agreement represents a fair compromise between the different interests at stake. The implementation of EU legislation adopted within the framework of the area of freedom of justice which relies on mutual recognition and trust raises serious human rights issues. The ECtHR may have a useful role to play in reminding the EU and its member states that mutual recognition should not undermine the core values on which it is founded.
* Federico Fabbrini and Joris Larik, ‘The Accession of the EU to the ECHR and its Effects: Nada v Switzerland, the Clash of Legal Orders and theConstitutionalization of the ECtHR’ (working paper)
After years of negotiation, in April 2013 the European Union (EU) and the member states of the Council of Europe reached consensus on a draft Agreement on the Accession of the EU to the ECHR. This event represents a milestone development for the protection of fundamental rights in the EU. But what are the effects of accession on the ECHR and its court – the European Court of Human Rights (ECtHR)? This paper argues that the accession of the EU to the ECHR will represent a formidable boost for the constitutionalization of the ECtHR. By interpreting constitutionalization here as a process of increasing autonomy vis-à-vis international law, the paper explains how the Accession Agreement creates strong institutional pressures for the ECtHR to raise its standards of protection up to the level set by the Court of Justice of the EU (CJEU), or beyond. This race to the top in human rights protection, however, may come at the price of decreased abidance to international law, including the supremacy of the Charter of the United Nations (UN). To exemplify this argument, the paper considers the recent ECtHR Grand Chamber judgment in Nada v. Switzerland concerning the legality of counter-terrorism regime established by the UN Security Council. In its ruling the ECtHR found that Switzerland had violated the ECHR in implementing the UN counter-terrorism sanctions and, albeit without calling into question the action of the UN itself, strongly reaffirmed the primacy of the protection of human rights under the ECHR system. Through a critical discussion of the decision, the paper emphasizes how the ECtHR was squeezed between the willingness to avoid a direct clash with the UN and yet the unwillingness to lose the pace set by the CJEU in its celebrated Kadi decision. We conclude from this that Nada can only be rationalized in light of the looming accession of the EU to the ECHR and the ensuing pull towards the constitutionalization of the ECtHR.
* Gregor Puppinck, ‘Abortion and the European Convention on Human Rights’, Irish Journal of Legal Studies, vol. 3(2), p. 142 (1 July 2013).
In recent years, the European Court of Human Rights has ruled on a number of cases dealing with the issue of abortion, providing a sufficient corpus of jurisprudence which may be analyzed in a consistent manner. A number of analysts, on both sides of the abortion debate, are not satisfied with this case-law. This article aims not to discuss each ruling of the Court case by case, but to try to find, in an objective and systematic manner, the coherency of the jurisprudence of the Court, and in doing so, to present a reasoned legal account of abortion under the Convention.