Friday 24 August 2018

New ECHR Readings

Please find below a range of recent academic articles and publications about the European Convention and the European Court:

* My Utrecht colleague Janneke Gerards has just published (open access) the article 'Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights' in the Human Rights Law Review :

'Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further benefit from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.'

* Kanstantsin Dzehtsiarou, 'What is Law for the European Court of Human Rights?', Georgetown Journal of International Law, vol. 49.1 (Fall 2017) p. 89 ff.:

'This Article will suggest that judges of the European Court of Human Rights (ECtHR) take into account both legal and non-legal considerations when deciding “hard” cases. This Article focuses on these legal considerations, emphasizing the legal, rather than the political, personality of the ECtHR. Legal considerations can be further divided into internal and external ones. The former originate from within the European Convention on Human Rights (Convention) system, such as the ECtHR case law or the law and practice of the Contracting Parties to the Convention. The latter are provisions borrowed from outside of the realm of the Convention, such as international treaties or laws and practices from nations outside of the Council of Europe. This Article will argue that reliance on internal, as opposed to external, sources can help minimize the challenges that the ECtHR is currently facing in regard to its legitimacy.'

* Lize Glas, 'Translating the Convention’s Fairness Standards to the European Court of Human Rights: An Exploration with a Case Study on Legal Aid and the Right to a Reasoned Judgment', European Journal of Legal Studies, vol. 10, no. 2 (2018):

'The European Court of Human Rights (ECtHR) has clarified when domestic procedures are fair, but it remains unclear when the ECtHR’s own procedures are fair. Yet, clarifying the requirements of procedural fairness applicable to the ECtHR is important, especially in a context where doubts have been expressed about the fairness of some of the Strasbourg procedures. This article proposes that the fairness standards from the ECtHR’s case law, which apply to domestic authorities, can be applied to the Strasbourg Court. These standards must, however, be adapted to or ‘translated’ into the ECtHR’s context, because its context is so different from that of domestic authorities. This article, therefore, develops eleven principles of translation. The usefulness of the principles is tested by employing those principles to translate two fairness standards: the right to legal aid and the right to a reasoned judgment. Subsequently, the usefulness of the translated standards is evaluated by applying those translated standards to two aspects of the ECtHR’s practice: the granting of legal aid and single-judge decisions.'