Tuesday 23 April 2019

Conference on Loyal Co-operation in the ECHR System

The University of Liverpool School of Law and Social Justice is organizing the conference 'Loyal Co-Operation within the System of the European Convention on Human Rights' on 10 and 11 May. The extensive two-day programme features new research presentations from scholars across Europe and several Strasbourg judges will participate in the discussions. The conference will go into key questions of co-operation with and resistance to Strasbourg institutions by ECHR State Parties, and will include several country case studies. The full programme can be found here. Registration is open now and can be done online.

Wednesday 17 April 2019

Case-Law Guide on Article 17 ECHR

In its series of case-law guides, the Court has published online a new one on Article 17, the European Convention's provision on the abuse of rights. This Article provides: 

"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." 

The case-law guides give an overview the Court's main judgments, organised by Convention article. In this case the overview is pretty complete considering the relatively limited case-law. The guide on Article 17 is currently only available in English. A full overview of the existing case-law guides can be found on the Court's website. Their systematic presentation and the inclusion of web links to all the cited judgments make it an easily navigable and very useful resource.

Monday 15 April 2019

New ECHR Articles in Human Rights Law Review

The first issue of 2019 of the Human Rights Law Review (vol. 19, no. 1) includes a number of ECHR-focused articles:

* Alice Donald & Anne-Katrin Speck, ‘The European Court of Human Rights’ Remedial Practice and its Impact on the Execution of Judgments’, pp. 83-117:

'This article analyses the developing approach of the European Court of Human Rights to the indication of specific non-monetary individual or general remedies and the impact of this practice on the execution of its judgments. It draws on interviews with Judges of the Court and officials in Council of Europe institutions, and a statistical analysis of pilot judgments and judgments that invoke Article 46 of the European Convention of Human Rights delivered between 2004 and 2016. The article argues that the Court’s remedial practice is fluid and pragmatic, with differences of perspective between Judges. It discusses the factors that influence judicial decision-making, and examines the implications of the Court’s remedial approach both for its ‘horizontal’ relationship with the Committee of Ministers and its ‘vertical’ relationship with states. It concludes that, from both these perspectives, the door is open to continued evolution, if not revolution, in the Court’s remedial practice.' 

* Sofia Galani, ‘Terrorist Hostage-taking and Human Rights: Protecting Victims of Terrorism under the European Convention on Human Rights’, pp. 149-171:

'The 2004 Beslan school siege by Chechen gunmen and the Russian responses to the attack demonstrated the tremendous impact a terrorist attack and a state’s anti-terrorist operations can have on the human rights of victims. The violations of the victims’ human rights were examined by the European Court of Human Rights in Tagayeva v Russia (2017), which this article argues is a landmark case in that the Court placed the human rights of victims at the centre of its concerns and reinforced the idea that states remain bound by the European Convention on Human Rights in large-scale anti-terrorist operations. The principal goal of this article is to examine the positive and procedural obligations of states towards the victims as outlined by the Court and to assess how this case might shape future responses to terrorist attacks. It will be argued that when states respond to a terrorist hostage-taking, they have to focus primarily on the human rights of hostages abducted within or beyond their borders on land or at sea.' 

* Philippe Yves Kuhn, ‘Reforming the Approach to Racial and Religious Hate Speech Under Article 10 of the European Convention on Human Rights’, pp. 119-147:

'At present the European Court of Human Rights employs a two-track approach to racial hate speech and religiously offensive speech, respectively. Further, the jurisprudence under Article 10 of the European Convention on Human Rights currently privileges journalistic or scholarly, over creative or artistic, forms of religious criticism. However, in this article it is argued that the ‘gratuitously offensive’ test for religiously offensive speech requires reform, while a consistent approach to racial hate speech cases is equally necessary. By building on Waldron’s account of the harm in hate speech, a single Article 10 test for both racial and religious hate speech is proposed. This new test focuses on harm in the sense of seriously undermining the target’s assurance to a status of equal worth in the community. It abandons the unhelpful race/religion dichotomy in the Article 10 jurisprudence, and is more responsive to the political reality of tense public discourse surrounding issues of race and religion in Europe in the wake of the Syrian refugee crisis and Brexit.' 

Thursday 11 April 2019

New Judges Elected in Respect of Turkey and Malta

Earlier this week, the Parliamentary Assembly of the Council of Europe (PACE) elected two new judges to serve 9-year terms at the European Court of Human Rights. In respect of Malta, Lorraine Schembri Orland was elected with an absolute majority of votes cast. Judge Schembri Orlan currently presides over Malta's Civil Court, which also has jurisdiction over human rights matters. She has been very active throughout her career on non-discrimination and women's rights issues, co-drafting legislative reforms to integrate the norms of the UN's CEDAW Convention into Maltese law, advising on gender mainstreaming in the public sector and actively combatting domestic violence. She is also the first woman ever to be elected as judge to the European Court in respect of Malta. This was statistically guaranteed, as Malta submitted a list of three women to PACE (selected out of four timely applying candidates). 

There is no small irony here, as Malta became infamous in this context in 2009 during the last elections, when its lists of submitted candidates were rejected three times for featuring only male candidates. PACE deputies were very concerned about the argument of the Maltese government at the time that no qualified women could be found in such a small State Party for the position of a judge in Strasbourg. The policy of PACE is that "to ensure gender-balance on the Court, states are also asked to put forward at least one candidate from "the under-represented sex" unless there are exceptional circumstances." This in turn was the result of the European Court itself - in the context of that same discussion with Malta- issuing one of its first advisory opinions, in which it held that exceptional circumstances should be allowed for (no blanket ban by PACE on lists with only candidates of one sex, in short). As a pierce of context, currently about one third of the Court's judges is female, so an all-female list, like the current one was allowed.

In respect of Turkey, dr Saadet Yüksel was elected as the new judge, also with an absolute majority of votes. She is currently chair of the constitutional law department at Istanbul University and an associate professor there. One may note that all three candidates put forward by the Turkish government were academics and thus none came from the currently much-discussed Turkish judiciary. 

Good luck to both judges for the start of their work in Strasbourg later this year!

Monday 8 April 2019

Book on Inter-State Complaints and the ECHR

I somehow missed to highlight this earlier, but last year an important book on the often-overlooked other contentious role of the Court (beyond deciding in individual cases) was published. Isabella Risini has written The Inter-State Application under the European Convention on Human Rights. Between Collective Enforcement of Human Rights and International Dispute Settlement in the series 'International Studies in Human Rights' of Brill-Martinus Nijhoff, This is the abstract:

'The Inter-State Application under the European Convention on Human Rights provides the first comprehensive monograph about the State-to-State human rights enforcement mechanism. The functions of the mechanism include also dispute settlement aspects, which are related to the compulsory jurisdiction of the Strasbourg Court. The study provides a full account of the development of the Inter-State Application under Article 33 ECHR and puts its case law in the relevant historical and institutional context. The analysis concludes with detailed reform considerations which are situated within the discussion about the role of the European Court of Human Rights. The focus lies on the possibility to address and improve systemic human rights deficits beyond the single case. The Court’s growing inter-State docket evidences the need for legal certainty.' 

    Tuesday 2 April 2019

    Linos-Alexandre Sicilianos New President of the Court

    Although announced on April fools' day by the Court, one may assume this is serious and real news: the Court has elected from its midst Linos-Alexandre Sicilianos to serve as its new President. Judge Sicilianos had already been one of the Court's Vice-Presidents since 2017 and a judge at the Court since 2011. Before joining the Court, he was a well-known academic expert on human rights in Greece, serving amongst others on the UN Committee on the Elimination of Racial Discrimination. He will succeed the Court's current President Guido Raimondi on 5 May, who has headed the Court for around 3,5 years. Since terms rum for nine years at the Court and are non-renewable, Sicilianos will be President for just over a year, until 18 May 2020 at most (he started his term on 18 May 2011).

    The Court also elected ECHR a new Vice-President, the judge in respect of Iceland, Robert Spano. And a new Section President was also elected: Ksenija Turković, the judge in respect of Croatia. They will also start in their new functions on 5 May.

    Strasbourg watchers might surmise two things from the above: the Court's Presidents in the last decade have served for relatively short terms (between one and four years) and that has to do directly with the non-renewable terms of nine years. Thus, long terms such as the one of former President Luzius Wildhaber (1998-2007) have - even if theoretically still possible - become quite unlikely. Specifically, because one may assume the Court's judges will always want to elect someone amongst their midst with a solid experience in the inner workings of the Court and that takes a few years to acquire. Secondly, one may also infer that Robert Spano may stand good chances next year, as his term runs for several more years and he has just been appointed Vice-President. But then the judges on the Court may also decide it is time to elect in the near future for the first time a female judge to head the Court. Enough to occupy the minds of Strasbourg afficionados.

    Greek newspaper Ekatherimini mentioned that the election was hailed by the Ministry of Justice as a great honour for Greece and highlighted that Sicilianos is the first Strasbourg Court president from that country (one may note that, even though Ekatherimini is a quality newspaper, it sadly thinks the European Court of Human Rights is part of the EU....).

    For now, all the best wishes of success to the Court's new President!