Thursday 26 January 2017

The Court in 2016: Overview

At his annual press conference today, the President of the European Court of Human Rights, Guido Raimondi, presented an overview of the Court's work over the past year. The most important issues: in 2016, for the first time after a two-year decrease, the number of incoming cases was on the rise again, and quite considerably so. at the end of December 2016, 79,750 were pending in Strasbourg. this is a rise of 23% compared to a year earlier. After the decreases of the previous years, which seemed to make inroads in the huge backlog of cases, this rise is worrying obviously. Especially, if we consider that the Court internally has been working even more efficiently in 2016 (a rise of 32% of allocated cases) To a considerable extent, it seems to be caused by complaints about detention conditions in Hungary and Romania and with the situation in turkey, especially after the failed July coup. Moreover, the number of decisions on interim measures also rose with a staggering 56% to 1,926 in 2016. Two thirds of these requests concern expulsion cases.

Further statistics (including overviews for each ECHR State Party) also give an indication were human rights are under pressure on the largest scale: at the end of 2016 the majority of pending applications concerned Ukraine (22.8 %), Turkey (15.8 %), Hungary (11.2%), Russia (9.8 %), and Romania (9.3 %). Almost 70 percent of all pending cases thus concern only five countries. Half the priority cases concerned Ukraine. As to violations found in 2016 by the Court, a handy overview shows that the top countries against which the Court found at least one human rights violation per case are largely the same ones: Russia (228 judgments), Turkey (88), Romania (86), Ukraine (73), Greece (45) and Hungary (41).

The full webcast of the press conference can be watched here.

Wednesday 25 January 2017

New Judges in respect of the Netherlands and Hungary

Yesterday, the Parliamentary Assembly of the Council of Europe elected two new judges to the European Court of Human Rights. For the Netherlands, judge Jolien Schukking was elected. Judge Schukking was preferred over two other similarly very well-qualified Dutch ECHR experts, professors Rick Lawson and Martin Kuijer. All three are currently fellow board member here at the Dutch human rights law review (Nederlands Tijdschrift voor de Mensenrechten) - as a journal board we are obviously very proud of all three and especially of Jolien. Many congratulations, Jolien!

Jolien Schukking is an experienced national judge, currently in the Administrative High Court for Trade and Industry (College van Beroep voor het bedrijfsleven), one of the (four) highest Administrative Courts in the Netherlands. Previously, she was a judge at the first instance court of Utrecht, dealing with both refugee law and criminal law cases. She has also been active as a solicitor. Jolien Schukking is no stranger to Strasbourg, as she was a senior legal officer with the dutch Foreign Ministry in the past, amongst others representing the country in human rights proceedings at the European Court as well as leading the Dutch delegation on negotiations on Protocols 12 and 13 ECHR. She has even worked at the former European Commission of Human Rights for some time. She also has experience in UN human rights law. Jolien Schukking has also been active in training and teaching judges on the ECHR internationally and is currently a board member of both the Foundation Judges for Judges and a member of the International Association for Refugee Law Judges.

In respect of Hungary, the choice fell on Mr Péter Paczolay. Again, a very experienced judge, having been judge at Hungary's Constitutional Court from 2006 to 2015, of which he was President since 2008 until 2015, when the recent changes to the Constitutional Court were made by the government. Also well-known and appreciated in the Council of Europe, e.g. though his work for the Venice Commission, the Commission “for Democracy through Law” in which he served and three years ago was made honorary President. Whatever the current political developments in his own country, it is great to see the Parliamentary Assembly did value his credentials in staunchly defending and upholding the rule of law (to note: an earlier list of three candidates submitted by Hungary was sent back by the Assembly). Congratulations too! 

Both new judges have been elected for a term of nine years and should start working in Strasbourg within three months.

Thursday 19 January 2017

Guest Post on Grand Chamber Judgment in Hutchinson

As the first post of the new year on the ECHR Blog, it is my pleasure to introduce a guest post by Kanstantsin Dzehtsiarou of the University of Liverpool on this week's Grand Chamber judgment on life sentences without parole in the case of Hutchinson v. the United Kingdom.

Is there hope for the right to hope?
Kanstantsin Dzehtsiarou, University of Liverpool

A disappointing Chamber judgment in Hutchinson v the UK led on 17 January 2017 to an equally disappointing Grand Chamber judgment in the same case. This case was a follow-up from the Court’s judgment in Vinter v the UK in which the Court ruled that life sentences without parole which cannot be reviewed are incompatible with the Convention as they violate Article 3 ECHR – the prohibition of torture and inhuman and degrading treatment and punishment. The Court has poetically in this context come up with the term “a right to hope”, meaning that a life prisoner should have hope to be released however remote this hope might be. This blog post does not take a stand on the issue of whether the judgment in Vinter was a correct interpretation of the Convention. Rather I will argue here that Vinter’s overturn in Hutchinson lacks consistency and that it is based on a very thin legal foundation.

I have already considered the facts of Hutchinson case and its connection with Vinter in my previous blog post on this issue and therefore I will below only consider the reasoning of the Grand Chamber of the Court.

Magic powers of the Court: it can see something where there is nothing

In Hutchinson, the Court has overruled its previous judgment. Usually, this is done by means of evolutive interpretation. Arguably, in this case we have an instance of interpretation of evolution which lowers rather than heightens human rights protection. Although this is not unprecedented in the Court’s history, one can argue that the Court needs serious reasons to depart from its own case-law not only in cases of ‘progressive’ evolution but especially in opposite cases. On more than one occasion the Court itself has pointed out that evolutive interpretation should be justified by particularly strong reasons. In the current climate when there is a growing political appetite to curtail human rights, a Court interpretation towards change in this direction without good reasons may create a dangerous precedent for further reduction of basic human rights guarantees.

It is argued here that the Court simply had no reason to depart from Vinter. The Court focused on the McLoughlin decision of the Court of Appeal of England and Wales which in the view of the majority had clarified the applicable law and for that reason, unlike in Vinter, the Court could no longer find a violation of Article 3 ECHR. I dare to suggest that the McLoughlin judgment merely reiterated what was known at the time when the judgment in Vinter was deliberated and therefore McLoughlin did not provide a clear reason to depart from it.

This is so, for a number of reasons. First, it was known at the time of the Vinter judgment that the Secretary of State can revise a life sentence without parole in a very narrow set of circumstances provided by the Lifer Manual. Despite the findings of the Grand Chamber in Vinter, the Secretary of State can still revise the life sentence accoridng to the same Lifer Manual which is still in force.

Secondly, the Court of Appeal suggested in McLoughlin that “The Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds. He cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual. This was also known at the time of Vinter. Back then, the European Court had explicitly considered the earlier judgment of the Court of Appeal in R v. Bieber in which Lord Phillips ruled that “At present it is the practice of the Secretary of State to use this power sparingly [power to release], in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.” It is quite clear that Lord Phillips suggested that the Secretary of State can go beyond what is provided for in the Lifer Manual under certain circumstances which were quite ambiguous at the time of Vinter and that they have not been clarified ever after. Moreover, it seems that neither at the time of Vinter nor at the time of Hutchinson were these suggested broad powers used by the Secretary of State in practice.

Thirdly, the Court referred to the Human Rights Act of 1998, saying that the Secretary of State should take into account the case law of the European Court in making his or her decision about a possible release of the prisoner. The Human Rights Act came into force in the year 2000. The Court delivered its judgment in Vinter in 2013 and it was known by the Court at that time that Strasbourg jurisprudence should be taken into account by the Secretary of State. This knowledge did not prevent the Court from finding a violation then. The limitations of the Human Rights Act argument were also highlighted by the dissenting judge Pinto de Albuquerque.

Finally, the Court was concerned in Vinter with the lack of clarity in relation to the timeframe of review of the sentence, in other words there was no minimal term after which this review should have taken place. In Hutchinson, the European Court stated that it is not a problem any longer because the prisoner can apply to the Secretary of State at any point during his or her sentence. Curiously, at the time of Vinter I would suggest the rule was exactly the same.

The conclusion is that the Court has changed its stance without having a concincing explicit reason to do so. It seems that the Court implicitly acknowledged that its judgment in Vinter was an incorrect reading of the Convention and Hutchinson has clarified this. The Court did not state that but the very thin foundation of the reasoning in Hutchinson suggests so.

What comes after Hutchinson?

Arguably, the right to hope still stands as this key standard has not been (at least explicitly) overruled by the Court. It just changed how it defines the term– even a glimmer of hope is now sufficient. Vinter had a significant influence on the case-law of the ECtHR. Just to name a few examples: the Court prevented extradition of the applicant to the country in which he could be sentenced to life imprisonment without parole in Trabelsi v Belgium, the Court used the fact that life prisoners can have a hope for release to justify the need for rehabilitation of such prisoners and as a result found a violation of the Convention in Khoroshenko v Russia for not providing family visits during first ten years of life imprisonment. After Hutchinson, the clarity of the standards of Vinter is no longer applicable law.

Now, I can see two possible consequences of the Grand Chamber judgment in Hutchinson. First, it will be a sui generis standard for the United Kingdom while all other states will be under a more stringent standard developed in Vinter. This outcome has an obvious disadvantage of creating double standards in human rights protection. The second possibility is that Hutchinson will justify a broader margin of appreciation for the Contracting Parties in this area and as a result it will cause loosening of the standards that were developed in the recent case-law of the Court.

As it is often said – every cloud has a silver lining. It is possible for the Court to review its judgment in Hutchinson. If the Secretary of State continues to use her powers very restrictively, and there will be no effective way to facilitate the right to hope in practice, the Court can come back to this issue. It has done that in the past. For example, in Sheffield and Horsham, the Court warned the UK that if it does not improve transgender rights protection it will find a violation of the Convention in the future. While not condemning the UK for a violation in Sheffield and Horsham, only four years later the Court found a violation in the very similar case of Christine Goodwin v the UK. Although the situation in Hutchinson and in Sheffield and Horsham are obviously different the Court might be asked to reconsider this situation when an appropriate application is submitted.