Friday 20 November 2015

Seminar on Procedural Dialogue in the ECHR System

It is still some time away, but good to already inform you of it: on 26 January, Nijmegen University is organising a seminar at the Europe House in The Hague. The aim of the seminar, entitled 'Procedural Dialogue in the European Convention on Human Rights System', is to discuss the ways in which procedural dialogue can be shaped through specific procedures, the Court’s judgments and domestic courts’ reactions. This is the programme: 

10:00-10:30        Registration, coffee & tea
10:30-10:50        Introduction
(L.R. Glas, Radboud University (RU))
10:50-11:10        Judicial dialogue and Protocol 16 – lessons from the European Union
 (J.H. Gerards,RU)
11:10-11:30        Dialogue with the domestic legislature (P. Leach, Middlesex University)
11:30-11:50        Discussion

Coffee & tea break

12:10-12:30        Dialogue through (negative) case-law
(B.E.P. Myjer, Free University Amsterdam and former ECtHR judge)
12:30-12:50        Dialogue and the execution of the Court’s judgments
(E. Lambert Abdelgawad, Université de Strasbourg)
12:50-13:10        Discussion

Lunch break

14:10-14:30        Dialogue, bundling cases and referring cases back
(A.B. Terlouw, RU)
14:30-14:50        Dialogue and procedural reform
(M. Kuijer, VU and Ministry of Security and Justice)
14:50-15:10        Discussion
15:10-15:30        Conclusions
(R.A.A. Böcker, Dutch Ministry of Foreign Affairs)

High tea

To register, please contact Ms. Charley Berndsen at c.berndsen at before 15 January 2016.

Thursday 19 November 2015

ECHR Readings

Please find below a selection of a number of books, articles and research papers on the ECHR which have been published in the past year (some of which I had overlooked earlier, more to follow in later posts). Enjoy reading!

The newest issue of the International Community Law Review (vol. 17, nos. 4-5, 2015) includes two ECHR-related articles:

* Marta Szuniewicz, 'Problems and Challenges of the ECHR’s Extraterritorial Application to Law-Enforcement Operations at Sea' 
* Katarzyna Urszula Gałka, 'The Jurisdiction Criterion in Article 1 of the ECHR and a Territorial State' 

Other recent journal articles:

* Adamantia Rachovitsa, 'Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights', Leiden Journal of International Law, vol. 28, no. 4 (2015) pp. 863-885:

This article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

* Alexandra Timmer, 'Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law', American Journal of Comparative Law, vol. 63, no. 1 (2015) pp. 239-284:

The concept of stereotype is novel in the case law of the European Court of Human Rights. The ECtHR has started to refer to stereotypes in several recent judgments concerning, notably, race and gender equality. In contrast, anti-stereotyping has long been a central feature of both American and Canadian equal protection law. Offering a comparison of the legal reasoning of the ECtHR and the U.S. and Canadian Supreme Courts, this Article uncovers both the pitfalls and the potential of the stereotype concept to advance transformative equality.

And a number of books and book chapters:

* Octavian Ichim, Just Satisfaction under the European Convention on Human Rights (Cambridge University Press):

How effective is the European Court of Human Rights in dispensing justice? With over 17,000 judgments handed down, it is undoubtedly the most prolific international court but is it the most efficient when compensating the victims of a violation? This crucial but often overlooked question is the focus of this important new monograph which gives a clear, comprehensive and convincing demonstration of the negative impact, in terms of unpredictability and legal uncertainty, of the discretion used by the Court when it comes to the regime of reparation. It reveals the adverse influence of such a high discretion on the quality of its rulings - ultimately on the coherence of the system and on the Court's authority, and makes suggestions for improvement.

The book by Mads Andenas and Eirik Bjorge, A Farewell to Fragmentation. Reassertion and Convergence in International Law (Cambridge University Press 2015) includes:

* Dean Spielmann, 'Fragmentation or partnership? The reception of ICJ case-law by the European Court of Human Rights'
* Magdalena Forowicz, 'Factors influencing the reception of international law in the case law of the European Court of Human Rights'

The most recent volume of the German Yearbook of International Law (vol. 57, 2014) has just been published and includes:

* Mart Susi, 'Implied Constitutional Competence of the European Court of Human Rights' 

Finally, a working paper on SSRN, which may be of interest to many readers:

There is widespread and growing mistrust of the European Court of Human Rights (ECtHR) in the United Kingdom (UK). In response to what can be seen as the progressive ‘folk deviling’ of the ECtHR in the UK, the aim of this chapter is to explore how beliefs about the ECtHR are created and sustained. To achieve this aim, the chapter focuses attention on beliefs about the ECtHR that are expressed by members of the UK Parliament. Through an analysis of parliamentary debates, the chapter examines how parliamentarians discursively represent their beliefs about the ECtHR and how these beliefs come to achieve degrees of collective acceptance among MPs and Lords. As the analysis of parliamentary debates shows, the ECtHR is often depicted as a biased institution that poses a risk to the human rights of large sections of the UK population. If it is accepted that parliamentary discourse has an influence on wider public perceptions and opinions, then the beliefs expressed by parliamentarians that are outlined in this chapter should be of concern to anyone with an interest in encouraging a balanced and informed understanding of the ECtHR among the population of the UK.

Wednesday 11 November 2015

Guest Commentary on Grand Chamber Judgment Perinçek v Switzerland

On the important Grand Chamber judgment of Perinçek v. Switzerland, I am happy to introduce a guest commentary by dr Uladzislau Belavusau, an expert on freedom of expression and an assistant professor at the Free University Amsterdam. In his comment, he contextualises this Swiss case of Armenian genocide denial. Here is his post, which has been written jointly for ECHRBlog and VerfassungsBlog:

Perinçek v. SwitzerlandBetween Freedom of Speech and Collective Dignity

On 15 October 2015, the Grand Chamber delivered its judgment in the Perinçek v. Switzerland case. Notwithstanding some minor variations in reasoning, the outcome in the Grand Chamber is practically identical to the lower chamber. The Swiss criminal provision applied in the context of the denial of Armenian genocide was, thus, again found irreconcilable with freedom of expression under Article 10 ECHR. I have previously commented on the chamber judgment in a blog post entitled “Armenian Genocide versus Holocaust in Strasbourg: Trivialisation in Comparison”. On the one hand, I have overall welcomed the Court’s decision to protect freedom of speech against state censorship and instrumental memory politics. On the other hand, I have expressed scepticism about the unconvincing way the Court has coined a hierarchy between the Holocaust and the Armenian genocide. Such a hierarchy inevitably echoes a sense of the symbolic injustice towards Armenian communities and schizophrenic governance of memory within the Council of Europe, where only Holocaust denial is exempted from the free-speech paradigm. Yet several aspects of the Grand Chamber’s judgment make the reasoning in Strasbourg even more controversial and require further scrutiny. In this short commentary, I offer a brief factual summary of the Perinçek case followed by a criticism of central findings by the Grand Chamber.   

Facts and Judgement

Doğu Perinçek a former leader of a Turkish workers party, made a number of controversial statements on several occasions during his visit to Switzerland in 2005, arguing that the Armenian genocide is “an international lie” by the “imperialists of the EU and US”. The courts in Switzerland found him guilty under the criminal provision prohibiting denial or gross trivialization of genocides. After exhausting all the procedural tracks before Swiss tribunals, dr. Perinçek brought his claim to Strasbourg. In its initial judgment (17 December 2013), the European Court of Human Rights found that the criminal measure against dr. Perinçek had disproportionately interfered with and thus violated his freedom of speech. In its Grand Chamber’s judgment, the Court has, thus, struck the difference between protection of dignity for the Armenian community (embraced under Article 8 ECHR) and freedom of speech for dr. Perincek (Article 10 ECHR).

The arguments of the Grand Chamber can be summarized as follows:

1) The applicant’s statements bore on a matter of public interest and did not amount to a call for hatred or intolerance (para. 229-241);
2) The context in which they were made had not been marked by heightened tensions or special historical overtones in Switzerland (242-248);
3) The statements could not be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland (para. 272-273);
4) There was no international law obligation for Switzerland to criminalise such statements (para. 258-268);
5) The Swiss courts appeared to have censured Perinçek simply for voicing an opinion that diverged from the established ones in Switzerland, and the interference with his right to freedom of expression had taken the serious form of a criminal conviction (para. 274-282).

The European Court of Human Rights is not a military tribunal and, therefore, was not expected to answer the question of whether mass massacres of Armenians in the Ottoman Turkey amounted to genocide. Nonetheless, the hearing before the Grand Chamber in January earlier this year looked like a perfectly theatrical trial with multiple actors and staged speeches attempting to advance various historical narratives. Even the year of this hearing is spectacular. 2015 marks the 100th anniversary of the tragic extermination of 1,5 million of Armenians in the Ottoman Turkey widely addressed as the “Armenian genocide”. While sadly enough, media attention was focused more on the fact that George Clooney’s wife represented the Armenian side, the Court’s building was surrounded by a huge group of demonstrators with Turkish and Azeri flags clearly orchestrating this event as their rehabilitation stage. It would be fair to say that the Court did not have any intention to facilitate such rehabilitation, as much as, for example, the US Supreme Court certainly did not want to rehabilitate Nazi atrocities when it justified parade with swastikas in a town in Illinois (Skokie, 1977). Yet, its extremely lengthy judgment – together with dissenting and concurring opinions comprising of 128 pages – definitely raises a number of questions and could be used for instrumentally by Turkish and Azeri nationalists.

Problematic Aspects in the Court’s Reasoning

The Grand Chamber has, therefore, come to the same outcome as the Court did in its  2013 decision, namely establishing a violation of freedom of expression. This outcome is good news for a community of historians mobilizing against state censorship on history. Elsewhere, I have argued that criminal measures against genocide denial make little practical or normative sense. However, the difference between the Holocaust and “the rest” of mass atrocities established by the ECtHR is not only normatively problematic, but in practice invites further speculation. Such speculation would foster a nationalistic Turkic identity and anti-Armenianism amongst Turkish and – after a recent military conflict over Nagorno-Karabakh – Azeri communities throughout the world.

The Court makes a difference between the supposedly neutral comments of Perinçek, on the one hand, and incitement to hatred, on the other hand. According to the Court, dr. Perinçek advanced his statements as anti-imperialist instead of anti-Armenian, taking a neutral tone on the relationship between Muslims and Armenians in the Ottoman Empire. Just a couple of years earlier, however, in the case of Leroy v. France (2008), the Court refused to accept a justification of a caricaturist drawing a parody on the terroristic attack in New York, who claimed that his picture – instead of glorifying the atrocity – was simply a condensed anti-imperialist message. On that questionable reasoning, not all Holocaust deniers express anti-Semitic messages. Yet the Court sees them as inciting anti-Semitism or glorifying the atrocities against Jews. To give another example, the Court has earlier found no violation of freedom of expression in a case where Germany imposed criminal sanctions on animal rights activists. They collaged together pictures from Nazi concentration camps with animals in cages, with the aim of raising awareness about the sufferings of animals. The Court’s neutral perception of Perinçek’s statements is therefore paradoxical.

Perinçek is an active member of the Talat Pasha Committee, an organization that is concerned with the rehabilitation of the central military criminal, responsible for the massacres of Armenians, Mehmet Talat Pasha (1874-1921). It remains enigmatic how an admirer of Talat Pasha may be less anti-Armenian than a neo-Nazi fan of Heinrich Himmler would be anti-Semitic. Perinçek argues that Turks did not want a massacre of Armenians, while Western and Russian imperialist forces provoked the Ottoman government. Similarly, many Holocaust deniers and anti-Semites suggest that the Nazis just wanted to collect Jews together to transfer them to Palestine.

What distinguishes those two scenarios? Perinçek has orchestrated his statements to initiate the case for revisionism before the highest European courts. He later unsuccessfully tried to repeat it in Greece, a travel-tactics familiar to a number of Holocaust deniers from the USA “guest lecturing” throughout Europe. Although mentioning the tragic case of Hrant Dink, a Turkish-Armenian activist assassinated in 2007 in Istanbul, the Court substantially disregards the specific atmosphere of denialism and gross violations of the rights of minorities in Turkey, moving central attention instead to Switzerland where – supposedly – no tensions are possible on anti-Armenian grounds. The Court has failed to acknowledge the existence of anti-Armenianism as a specific ideology prevalent amongst Turkish and Azeri nationalists, including those scattered in huge Turkish diasporas in Europe these days.

The Court found no international obligation to criminalize Armenian genocide denial, which is again an arguable point. Similarly, it would be very hard to deduce a strong and unequivocal international obligation to criminalize Holocaust denial under the International Covenant on Civil and Political Rights, mentioned by the Court. In para. 99, the Court summarises four divergent legal models existing within the Council of Europe with regard to genocide denials: some countries do not have a criminalising clause, others penalize just Holocaust denials, there are those who punish the denial of both Nazi and communist crimes, while there are also those punishing the Armenian genocide denial and denials of similar historical injustices. Almost twenty countries, including organizations like – ironically – the Council of Europe itself and the European Union, have recognized the Armenian genocide through various forms of soft law. The same month as the Grand Chamber’s decision came through, Paraguay, for example, which is neither too close to Armenia or Turkey to mark any tensions between them, has joined that list. While clearly, to recognize and to prohibit denial of a recognized fact are two different legal modes, the judgment exposes the divergent and, at places, contradictory governance of history in European law.


A couple of years ago the US Supreme Court heard a case involving a picket of the Westboro Baptist Church activists on the sidewalk close to the funeral of an American soldier who died in a vehicle accident in Iraq. The sect glorifies deaths of American soldiers explaining them, inter alia, by the liberalization of homosexuality in the USA. The demonstrators displayed placards with slogans such as “America is doomed”, “You are going to Hell”, “America hates you”, “Fag troops”, “Thanks God for dead soldiers”, etc. In its 2011 judgment of Snyder v. Phelps, the US Supreme Court has held this type of speech protected by the First Amendment.

Many would find this decision irreconcilable with the European legal context of militant democracies and the protection of dignity. Albert Snyder, the father of the killed marine, testified: “They turned this funeral into a media circus and they wanted to hurt my family. They wanted their message heard and they didn’t care who they stepped over. My son should have been buried with dignity, not with a bunch of clowns outside”. The majority opinion in this judgment answers to this: “Westboro believes that America is flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible [...]. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate”.

The problem with the Strasbourg judgment in Perinçek is not that the Court defends freedom of speech under Article 10 ECHR. Historical discussion should be exempted from instrumental state censorship in a democratic state, even if that implies protection of a “bunch of clowns outside” and “negligible contribution to public discourse”. The problem is that while acknowledging the dignity of the Armenian community under Article 8 ECHR, the Court fails to express the necessary outrage about Perinçek’s statements. This goes in clear contrast with US judges acknowledging the hideousness of the message, even if they find it protected (Skokie 1977, R.A.V. v.St. Paul 1992, Snyder v.Phelps 2011, etc.). In this judgment, Perinçek, in contrast, is positioned almost as a partisan of free speech. In combination with an extremely questionable hierarchy between the Holocaust and other genocides, this failure to distance from Perinçek – albeit rightly protecting his freedom of expression – leaves strikingly little to sustain the dignity of the Armenian victims. 

Tuesday 10 November 2015

Commentary on Bouyid v Belgium

It is my pleasure to introduce a guest commentary on the Grand Chamber judgment of Bouyid v Belgium ( 23380/09 ) of last September. The commentary was written by a colleague here at Utrecht University, dr Stephen Riley, who is a postdoctoral researcher at the Ethics Institute in a project on human dignity and human rights. Here is his commentary: 

Case of Bouyid v Belgium (GC, 28 September 2015)
Stephen Riley

By a majority, the Grand Chamber found a violation of Article 3 following the slapping of two brothers held in police custody. The interest of the case lies in its extending the scope of ‘degradation’ but also in the problematic use of human dignity in the decision.     

There was a five-year history of conflict between members of the Bouyid family and the staff of a local police station. The applicants, brothers, had at separate times had altercations with police officers, been taken into custody, and been slapped by an officer after provocative or uncooperative behaviour. That the brothers had been slapped was corroborated by medical evidence. Given the special burden of proof applicable in detention cases (it is for the State authorities to cast doubt on the applicants’ account) the Grand Chamber accepted that a claim of mistreatment was justified and that the question of a Convention violation could be addressed.

The question for the Court was evidence of ‘degradation’. This requires injury or suffering of a minimum severity (para. 86). Analysis offered by a third-party argued that ‘severity’ is partially relative to circumstances, and situations of detention and vulnerability mean that acts like a slap to the face, which in other circumstances might be at the lower level of criminality, take on greater significance and gain sufficient ‘severity’ (para. 73). The Court itself asserted that circumstances can be such that an otherwise minor form of mistreatment becomes a violation of human dignity and can thereby be considered degrading (para. 87). In conjunction with the remaining evidence, the Court found “that the applicants’ dignity was undermined and that there has therefore been a violation of Article 3 of the Convention” (para. 102).  

In order to understand how human dignity was at issue, I will briefly reconstruct the judgment and dissent. The majority in the judgment held that, given certain background conditions (detention and vulnerability), what would otherwise only be a criminal act becomes harm to human dignity; that kind of harm, inflicted by an agent of the State, is necessarily a violation of Article 3 unless it is proven that the victim’s own actions justified the harm. The dissenting opinion, denying an Article 3 violation, asserted that given certain background conditions (detention and vulnerability) and a certain level of severity to the act itself what would otherwise only be a criminal act becomes harm to human dignity; that kind of harm, inflicted by an agent of the State, is necessarily a violation of Article 3 unless it is proven that the victim’s own actions justified the harm. That is, while the majority lists certain kinds of physical or mental ill-treatment that would be considered severe, they also include the bare idea of “showing a lack of respect for or diminishing [a detainee’s] human dignity” (para. 87) as a distinctive and supplemental instance of ‘severity ‘. In contrast, the dissenters claim that “there are forms of treatment which, while interfering with human dignity, do not attain the minimum level of severity required to fall within the scope of Article 3” (dissent para 5).

With respect to case as a contribution to Article 3 jurisprudence, the dissent raises important concerns. While not condoning mistreatment by State officials it asserts that it “is not for the Court to impose general rules of conduct on law-enforcement officers […]” (dissent para. 6) and it pointedly questions whether the threat of a single slap by a police officer would be enough to justify a non-refoulement decision (footnote 2). The thrust of the dissent however hinges on the significance and function of human dignity and the redundancy of the majority judgment’s uses of human dignity (dissent para. 4). Why should human dignity be considered redundant?

What engaged Article 3 was ‘harm to human dignity’ understood as unjustified harm, in a situation of detention, amounting to degradation. What, then, justifies the application of this standard? The majority judgment provides a catalogue of human dignity uses in international law (para. 45f). However, their function is not entirely clear. They act partly as prelude to discussion of more directly applicable instruments on torture and police procedure. They also help to justify more dramatic claims about the link between Article 3, human dignity, and the foundations of ‘civilisation’ (para. 81). Crucially, the Court implies that there is a special class of harm, or a special conception of wrong, implied by human dignity which is engaged whenever an individual is vulnerable (relative to the State) and harmed (para. 90). This is problematic and the basis of the charge of redundancy. How would such a class of harm be determined separately from our normal understanding of Article 3? After all, there may be human dignity harms that are not Article 3 violations but they would not be the concern of the Court unless they were violations of other Convention rights (in which case the relevance of ‘vulnerability’ and ‘harm’ would presumably be very different). Conversely, if harm to human dignity arises whenever there is detention and harm, then the scope of Article 3 protections seems to become unworkably wide.  

From this we can see in outline the problematic status of human dignity within the Court’s jurisprudence as a whole. Human dignity is often invoked as a foundational principle for human rights law, but denoting a special class of harm does not obviously fulfil this kind of foundational role. Put the other way around, cataloguing ways in which human dignity is foundational fails to justify a special link with Article 3 or a special class of harms; the link between human dignity and a special kind of degradation cannot be made from the preambular remarks of international human rights instruments alone. The growing body of Article 3 jurisprudence that does treat it as a special kind of prohibitive principle is increasingly problematic if it entails that any kind of mistreatment in detention is an Article 3 violation. There is, in essence, a disconnection between the foundational uses of human dignity in international law and the harm-centred jurisprudence of Article 3, a disconnection that only gets wider after a decision like Bouyid.

In sum, this judgment hinges upon a set of related claims that continue to inform and distort Article 3 jurisprudence. First, general international and regional materials on human dignity are broadly relevant to Article 3 cases, but they seem far less relevant than specific instruments on detention and mistreatment. Second, human dignity might be seen as a general principle counselling particular care with regards to those in custody, but it is not clear that human dignity provides for a specific kind of injury. Finally, Article 3 and human dignity together are treated cornerstones of ‘civilisation’ but such grand claims seem incongruous with the severity of the mistreatment found in a case like this.