Wednesday 23 March 2016

Guest Post: NGO Views on Protocol 16

It is my pleasure to present a guest post by Jennifer Babaie, a litigation fellow with the Open Society Justice Initiative. The note reflects the core points that a number of human rights NGOs submitted to the Court on the new Protocol 16, also known as the 'dialogue'  protocol:

"On 30 July 2015, the European Court of Human Rights (ECtHR) invited contributions from NGOs on proposed amendments to the Rules of Court arising out of the implementation of Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). Protocol 16 creates a brand new mechanism allowing the ECtHR to issue advisory opinions on matters of ECHR law, in cases referred by national courts.

The Open Society Justice Initiative, together with 10 other NGOs responded to the court’s call by submitting detailed comments on the draft rules. In the note, the Justice Initiative addressed multiple short-falls of the draft amendments, ranging from substantive concerns to minor procedural issues. Additionally, the Justice Initiative has produced a briefing paper reflecting a detailed analysis of each of the proposed amendments to the rules, a comparative analysis of the ECtHR’s new advisory opinion procedures with those of the Court of Justice of the European Union and other regional human rights bodies, as well as a review of academic discussion of the issues.

Protocol 16 and the proposed rules of procedure are a significant expansion of the court’s power to provide advisory opinions. The new protocol, which will enter into force once it has been ratified by a minimum of ten states, introduces an entirely new system which allows the “highest courts and tribunals” of a state party to request a non-binding advisory opinion directly from the ECtHR. Domestic courts can seek opinions on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. They may also seek an advisory opinion for the purposes of clarifying the ECtHR’s case-law. 

As of 16 March 2016, six states have ratified Protocol 16 (Albania, Finland, Georgia, Lithuania, San Marino, and Slovenia); another 10 have signed it. The purpose of Protocol 16 is twofold. First, it is intended to strengthen the interaction between national courts and the ECtHR. Second, it is intended to reduce the court’s excessive caseload.

For priority number one, the underlying rationale is that state parties will have access to more guidance from the court so that they can avoid future violations. With the advent of the new mechanism, national courts will be able to request advisory opinions from the ECtHR prior to the conclusion of their domestic case. Upon receipt of the court’s opinion, the national judge presiding over the case can make an informed judgment on the issue, potentially eliminating the need for an appeal to the ECtHR.

The hope of the drafters is that the issuance of advisory opinions will result in fewer violations of the convention, thus increasing the court’s efficiency and reducing its workload in the long run. However, what is not addressed by either the standing committee in charge of the ECtHR’s procedural rules or the committee of ministers in charge of drafting Protocol 16 is the extra work load that could result from a flurry of national judges seeking advisory opinions on a multitude of questions. Moreover, the rather vague language of the proposed amendments as currently drafted leaves the reader without a clear sense of just what exactly the necessary elements of a successful request are. Without greater resources being allocated to the ECtHR, it is difficult to see how the new mechanism will increase its efficiency rather than further hampering the court’s productivity.

In comments provided to the court by the collection of civil society partners including the Justice Initiative, three main problem areas were identified primarily relating to due process concerns.

Firstly, the amendments proposed do not include a mechanism to formally allow parties in domestic proceedings to intervene in the event that their case is referred to the ECtHR for an advisory opinion. The civil society organisations in consultation have proposed that the rules be amended to require the ECtHR to automatically notify the parties in a domestic proceeding that their case is the subject of an advisory opinion; in addition, the civil society collective propose that the parties be automatically invited to intervene in the advisory opinion process as a third party.

Secondly, the proposed amendments carry a very real risk of excluding the voice of the victim entirely from the advisory opinion proceedings. For example, draft rule X(B)(d) requires that a summary of the arguments made by the parties to the domestic proceedings should only be included with the request for an advisory opinion “if relevant”. It seems unlikely that arguments made on the very issue put to the ECtHR would not be relevant, but this qualification opens the door for arbitrary exclusions. The Justice Initiative and its partners propose that the rule be amended to clarify that the domestic court should always include summaries of the arguments of the parties wherever they address the issue for which an advisory opinion is sought.

Thirdly, the proposed amendments carry some risk that the domestic court requesting an advisory opinion will pre-judge the very issue for which it has sought clarity from the ECtHR. This risk exists because the draft rules explicitly invite the domestic court to give its own view on the question referred to the ECtHR. Forming a view on a case that has not been fully argued risks subordinating the due process owed to the parties. The Justice Initiative and its civil society partners propose to amend the current form of the draft rules to clarify what is not appropriate to include in the domestic court’s request: any opinion that might amount to pre-judging the question referred should be emphatically discouraged." 

Tuesday 22 March 2016

Oxford Commentary on the ECHR

Oxford University Press has published a new Commentary on the European Convention on Human Rights, by William Schabas (Middlesex and Leiden). The book is part of the great series of Oxford Commentaries on International Law. The volume of more than 1300 pages covers the Convention and the additional substantive Protocols article by article. Each chapter reflects the text of the provision itself, in English and French, introductory comments, a drafting history of the provision, a substantive section with analysis and comments including case-law references, a part on reservations and declarations and a reading list with relevant literature, ranging from very old to very recent. The book is made accessible not only through a detailed table of contents, but also a table of cases and an extensive index, making it a handy work of reference. One only wonders in total amazement how professor Schabas has managed to write such an extensive commentary on his own next to all his other work and publications. Almost all other comparable ECHR commentaries and books have, for many years now, been written by entire teams of researchers rather than by a single person. A very remarkable feat indeed and a great treasure trove of information as well as being a good starting point for any research on the Convention. The only real downside is the very high price. This is the publisher's description of the book:

"The European Convention on Human Rights: A Commentary is the first complete article-by-article commentary on the ECHR and its Protocols in English. This book provides an entry point for every part of the Convention: the substance of the rights, the workings of the Court, and the enforcement of its judgments. A separate chapter is devoted to each distinct provision or article of the Convention as well as to Protocols 1, 4, 6, 7, 12, 13, and 16, which have not been incorporated in the Convention itself and remain applicable to present law.

Each chapter contains: a short introduction placing the provision within the context of international human rights law more generally; a review of the drafting history or preparatory work of the provision; a discussion of the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and a selective bibliography on the provision.

Through a thorough review of the ECHR this commentary is both exhaustive and concise. It is an accessible resource that is ideal for lawyers, students, journalists, and others with an interest in the world's most successful human rights regime."

Friday 18 March 2016

Event on European Court and the UK

The Bingham Centre for the Rule of Law, part of the British Institute of International and Comparative Law, and the University of Leicester are organising an event entitled 'The Rule of Law, The European Court of Human Rights and the UK: A New Court for a New Era?' in London on Wednesday 20 April. This is the organizers' summary of the event: 

"It may be argued that, in the light of the Interlaken-Izmir-Brighton-Brussels reform process, the European Court of Human Rights/Convention system has reshaped itself significantly over the last 5 or so years, possibly reflecting a new distribution of powers between Strasbourg and the member states. This may or may not be a good thing. Does it reflect a natural evolution of the Convention system, or the necessary adjustments required of a Court that is under pressure and strain?

This half-day event, held on the fourth anniversary of the Brighton Declaration of April 2012, will provide opportunity to hear leading experts consider how the Strasbourg Court has evolved in recent years, and reflect upon its longer-term future. Speakers will also consider how the reform process might inform debate in the UK about the European Court/Convention system and a possible British Bill of Rights.

Part one of the event will address how the Court has evolved in recent years, in terms of the approach it adopts to resolving certain cases on their substantive merits. Part two looks more specifically at the reform process initiated at Interlaken and Brighton. A focal point will be the CDDH's report of the 'Longer-term Future of the system of the European Convention on Human Rights', and its implications." 

Speakers include: 

Opening keynote speaker: Rt Hon Dominic Grieve QC MP
Closing keynote speaker: Sir Nicolas Bratza (former President, ECtHR)

Ms Merris Amos (Reader in Human Rights Law, Department of Law, QMUL)
Dr Ed Bates (Senior Lecturer in Law, University of Leicester)
Richard Clayton QC (UK member, Venice Commission; Deputy High Court Judge; and 4-5 Gray's Inn Square) - tbc
Dr Alice Donald (Senior Lecturer, School of Law, Middlesex University London)
Prof Dr Martin Kuijer (Chairperson of the Council of Europe Working Group on Longer-term Future of the System of the European Convention on Human Rights; Substitute member, Venice Commission; Senior Legal Adviser, Netherlands Ministry of Security and Justice; and Professor Human Rights Law, Vrije Universiteit Amsterdam)
Prof Philip Leach (Professor of Human Rights Law, School of Law, Middlesex University London; and Director of the European Human Rights Advocacy Centre)
Mr Rob Linham OBE (Assistant Director, Europe and Domestic Human Rights, Ministry of Justice) - tbc
Dr Matthew William Saul (Postdoctoral Fellow, PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, Faculty of Law, University of Oslo)
Jessica Simor QC (Matrix Chambers and Bingham Centre external fellow)
John Wadham (Associate, Doughty Street Chambers)

The full conference flyer can be found here.

Monday 14 March 2016

Our New Book on European Human Rights Protection

It is my great pleasure to announce the publication, today, of a co-edited by book professor Oddný Mjöll Arnardóttir (University of Iceland) and myself (Utrecht University) on what we have dubbed the shifting gravities of the protection of human rights in the triangle: European Union, European Convention on Human Rights, and national jurisdictions. The full title: Oddný Mjöll Arnardóttir and Antoine Buyse (eds.), Shifting Centres of Gravity in Human Rights Protection. RethinkingRelations between the ECHR, EU, and National Legal Orders (Routledge 2016). Our book includes contributions from a wide range of authors who are experts on one or several of the interlinkages in this human rights triangle. This is the abstract:

"The protection of human rights in Europe is currently at a crossroads. There are competing processes which push and pull the centre of gravity of this protection between the ECHR system in Strasbourg, the EU system in Luxemburg and Brussels, and the national protection of human rights.

This book brings together researchers from the fields of international human rights law, EU law and constitutional law to reflect on the tug-of-war over the positioning of the centre of gravity of human rights protection in Europe. It addresses both the position of the Convention system vis-à-vis the Contracting States, and its positioning with respect to fundamental rights protection in the European Union. The first part of the book focuses on interactions in this triangle from an institutional and constitutional point of view and reflects on how the key actors are trying to define their relationship with one another in a never-ending process. Having thus set the scene, the second part takes a critical look at the tools that have been developed at European level for navigating these complex relationships, in order to identify whether they are capable of responding effectively to the complexities of emerging realities in the triangular relationship between the EHCR, EU law and national law."

And this is the table of contents:

1. Introduction, Oddný Mjöll Arnardóttir and Antoine Buyse

Part I: In Search of a Centre of Gravity 
2. The Paradox of Human Rights Protection in Europe: Two Courts, One Goal? Xavier Groussot, Nina-Louisa Arold Lorenz and Gunnar Thor Petursson 
3. The Role of the European Court of Human Rights in the Changing European Human Rights Architecture, Davíð Þór Björgvinsson 
4. The European Court of Human Rights and National Courts: A Constitutional Relationship?, Geir Ulfstein 
5. National Courts and Judicial Disobedience to the ECHR: A Comparative Overview, Giuseppe Martinico 
6. The Advisory Jurisdiction of the ECtHR under Protocol No.16: Enhancing Domestic Implementation of Human Rights or a Symbolic Step? Björg Thorarensen

Part II: European Rights and National Implementation: Rethinking the status quo 

7. Flying or Landing? The Pilot Judgment Procedure in the Changing European Human Rights Architecture Antoine Buyse 
8. The Court of Justice and Fundamental Rights: If Margin of Appreciation is the Solution, What is the Problem? Niamh Nic Shuibhne 
9. From Flexible to Variable Standards of Judicial Review: The Responsible Domestic Courts Doctrine at the European Court of Human Rights Başak Çalı 
10. Speaking the Same Language? Comparing Judicial Restraint at the ECtHR and the ECJ Oddný Mjöll Arnardóttir and Dóra Guðmundsdóttir 
11. Squaring the Circe at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has it Just Begun?, Andreas Follesdal.

Many thanks to all contributing authors!