Friday 28 June 2019

Miscellaneous News from the Court and the Council of Europe

A number of developments to note at the Court and the Council of Europe this time. This week, the Parliamentary Assembly elected two new judges to the European Court of Human Rights. In respect of Germany, Anja Seibert-Fohr, was elected. A well-known figure in the human rights field, she is currently professor of public law, international law and human rights law in Heidelberg and until last year was a member of the United Nations Human Rights Committee. In respect of Estonia, Peeter Roosma was elected. He is currently a justice of Estonia's Supreme Court. But he is also very familiar with the ECHR, as he worked in the European Court of Human Rights between 2004 and 2016 as a lawyer and non-judicial rapporteur. Since then, he has been one of the Estonian ad hoc judges in the Court. He has also been a member of the Venice Commission. Their terms of nine years will start in January 2020.

There will also be some internal reshuffling at the Court, as a new deputy registrar has been elected, Marialena Tsirli. With a long track record in the Court (and before that in the European Commission of Human Rights), she encapsulates a lot of experience in the Strasbourg system. Her term will start on 1 July when she will succeed Françoise Elens-Passos, who has been the deputy registrar since 2015. Secondly, Paul Lemmens, the judge in respect of Belgium, has been elected as section president. His two-year term will start on 20 September.

On the procedural front, on 3 June, the Plenary of the Court adopted the newest version of the Rules of Court, which regulate its internal functioning and procedures.

It was also a very turbulent week for the international organization of which the Court is the crown jewel - the Council of Europe. On 26 June, it announced the name of its new Secretary-General. The Parliamentary Assembly elected the current Minister of Foreign and European Affairs, Marija Pejčinović Burić. She obtained an absolute majority of 159 out of 264 votes cast in the first round against 105 for her competitor, the Belgian Minister of Foreign Affairs Didier Reynders. She will succeed current Secretary-General Thorbjørn Jagland on 24 September, starting her 5-year term. For Reynders it is not the first time he fails to get elected or appointed for a European top position. Conspicuously, the election happened after the Parliamentary Assembly had voted to restore the voting rights of the delegates of Russia, which had been suspended following the Russian annexation of the Crimea. With financial, political and, of course, human rights challenges, this promises to be a tough time to head the organisation. But at least, the Council of Europe sorted out its leadership - something the European Union is still negotiating about at this very moment.

Tuesday 25 June 2019

Book on the Separation of Powers in ECtHR Case-Law



Aikaterini Tsampi, of the University of Groningen, has published a book on the separation of powers in the case-law of the European Court of Human Rights. The book, written in French, is entitled Le principe de séparation des pouvoirs dans la jurisprudence de la Cour européenne des droits de l’homme and was published by Editions Pedone in the series Fondation Maragkopoulos pour les droits de l’homme (No. 21). This is the abstract in English:


'What of the idea that a constitutional principle concerning the institutional organization of the State, such as the separation of powers, could be found in the jurisprudence of an international court of human rights, namely the European Court of Human Rights ? Even if it were to be audacious to prove that the judges of the Strasbourg Court apply a precise theory of separation of powers, it, nonetheless remains relevant to answer the question whether the solutions adopted by the aforementioned judges outline a coherent vision of what should be, in their view, the relations between the branches of government. Yet, one should always bear in mind that the theory of the separation of powers, as conceived in the contemporary liberal State, implies the consecration of only a minimum nucleus of solutions. Within this context, the primary aspiration of the separation of powers lies in the protection of the judicial and legislative branches against the executive. The European Court of Human Rights shares this view. Even if the principle of the separation of powers is not a principle enunciated by the Court, at least not with the required precision, it is, nonetheless, a principle already present in the Strasbourg jurisprudence and its future cannot but be regarded as promising.' 

Monday 17 June 2019

New ECHR Readings

Please find below a new batch of academic ECHR readings:

* Meltem Ineli-Ciger, ‘Remedies Available against Asylum Decisions and Deportation Orders in Turkey: An Assessment in View of European Law and the European Convention on Human Rights’, Nordic Journal of International Law, Vol. 88, Issue 2 (2019) pp. 216-249:

'This article examines administrative and judicial remedies against asylum decisions and deportation orders in Turkey and safeguards provided within these remedies with a view to analysing to what extent they are in line with European law and the European Convention on Human Rights (echr). The article has two main parts. The first part provides an overview of the Turkish asylum system and remedies available against asylum decisions and deportation orders in Turkey. Whereas, the second part identifies main procedural safeguards to be observed in asylum and deportation appeals by reviewing EU asylum acquis, the echr and case law of the European Court of Justice and the European Court of Human Rights. Building on this, the article assesses whether the Turkish law and practice incorporate these procedural safeguards and provide asylum seekers and migrants a right to effective remedy.'

And then a whole series of articles related to the European Convention and the European Court published online in the past months in the International Journal of Human Rights:

* Vibeke Blaker Strand, 'Interpreting the ECHR in its normative environment: interaction between the ECHR, the UN convention on the elimination of all forms of discrimination against women and the UN convention on the rights of the child': 

'The article draws attention to how integrative interpretation – a methodology where the European Court of Human Rights integrates its normative environment into the interpretation of the European Convention of Human Rights – may offer an important path to bridging many of the challenges caused by fragmentation in the field of human rights. More specifically, the article offers insight into a selection of ECHR cases that are characterised by the existence of normative overlap between the ECHR, the CEDAW and the CRC; and by the fact that interaction between these legal sources actually takes place in the interpretation carried out by the Court. Interaction is discussed through two topics: the issue of state obligations in relation to domestic violence, and the issue of state obligations in relation to expulsion of immigrants with children. The article demonstrates that systemic integration may result in a strengthening of the protection of human rights under ECHR through what is termed ‘interpretive widening and thickening’.'

* Øyvind Stiansen,'Delayed but not derailed: legislative compliance with European Court of Human Rights judgments':

'Legislative changes can be crucial for implementing human rights. This article investigates how the need for legislative changes influences compliance with European Court of Human Rights (ECtHR) judgments. I argue that the need for legislative changes might influence compliance politics in two ways. First, ECtHR interference with the will of elected parliaments is controversial in several European states. Such controversy might increase the risk of defiance of judgments requiring legislative changes. Second, the greater number of veto players needed to pass legislative is likely to delay compliance. Using original implementation data, I show that the need for legislative changes tends to delay compliance, but does not increase the risk of long-term defiance. The ECtHR's ability to eventually prompt legislative changes is not smaller than its ability to induce other reforms. I also find that delays associated with the need for legislative changes are greater in states with greater numbers of ideologically diverse veto players, in states with a proportional electoral system, and in states without domestic judicial review.'

* Frederick Cowell, 'Understanding the causes and consequences of British exceptionalism towards the European Court of Human Rights':

'The United Kingdom’s exit from the European Union has overshadowed the increasingly fraught relationship the country has with the European Court of Human Rights. In recent years this has been heavily influenced by British exceptionalism among key policy makers. British exceptionalism, this paper argues, is opposition to the European Court of Human Rights characterised by the belief that the UK’s domestic constitutional institutions are unique and superior to the European Convention on Human Rights, in part because of their historical provenance and longevity. This has led to non-compliance with Court judgments being considered or arguments for withdrawal from the Convention being justified on the basis that British traditions and institutions are superior. On the international plane this appears as a double standard on the part of the UK and contributes to the undermining of the Court’s authority. This paper looks at the core arguments of British exceptionalism, examining their historical origins within UK constitutional law and politics, before looking at how exceptionalism affects the Convention system across Europe.'

* Helen Keller & Reto Walther, 'Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3':

'While it is evident that the ECtHR’s main task is applying the ECHR, it is debatable whether the Court has adequate regard to general international law when considering questions left open by the ECHR. We contribute to this debate from a normative perspective. We discuss the criticism that the Court unduly evades the ARSIWA by applying an expansive positive obligations doctrine. We submit that the Court’s propensity to focus on preventive obligations is justified in substance, since it is difficult to imagine how human rights could be effectively protected without such positive obligations in a world where state, third state and private actors mingle. In this sense, the Court’s jurisprudence makes valuable contributions to the adaptation of the international legal system to changing societies. Criticism should focus less on the Court’s inclination toward positive obligations than on its pertinent methodology, which is at times less than convincing.' 

* Martin Kuijer, 'The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession':

'The consequences of a prolonged non-accession of the European Union to the European Convention on Human Rights following Opinion 2/13 of the Court of Justice of the European Union may very well affect the longer-term effectiveness and viability of the Convention system. This contribution gives a succinct analysis of the institutional link between the Convention system and the EU legal order, and of the more recent interaction between the two systems, arguing that both were on what seemed to be a collision course until recently. The author stresses the continued need for an institutionalised arrangement between both regional courts working in the same geographic area interpreting similar human rights standards.'

* Tonje Meinich, 'EU accession to the European Convention on Human Rights – challenges in the negotiations':

'In this article, I go through the main challenges we encountered in the negotiations between the EU and the member states of the Council of Europe on the EU accession to the European Convention on Human Rights. I particularly comment on the discussions concerning the co-respondent mechanism and the inclusion of EU Common Foreign and Security Policy.'

* Geir Ulfstein, 'Interpretation of the ECHR in light of the Vienna Convention on the Law of Treaties'. [no abstract available]

Thursday 13 June 2019

New Case-Law Guide on Protection of Property

In its ever-increasing collection of case-law guides, the European Court of Human Rights has just now published for the first time a guide on Article 1 of the Convention's First Protocol, the protection of property. Considering that this is among the most invoked Convention articles, as well as being, due to its socio-economic nature, one of the toughest privisions to adjudicate on, it may not be surprising that it took a long time to compile (I know from experience what it is to compile an overview of ECHR case-law on that issue). However, it is still remarkable that the overview presents case-law up till August last year and was only put online now, in early June 2019. Be that as it may, this case-law guide like the earlier ones provides a very extensive and systematised overview of the Court´s acquis on the protection of property. It offers not just an explanation of the various notions in the provision, but also relates the jurisprudence on this to other Convention provisions and goes into specific issues, such as social welfare, banking, taxation, and property restitution. At the end of the extensive, 74-page overview, a list of all the referenced cases with hyperlinks is provided. Only available in English sofar.

Friday 7 June 2019

Call for Contributions to ECHR Domestic Implementation Handbook

The European Implementation Network, a hub of European civil society aimed at increasing the timely and effective implementation of the judgments of the European Court of Human Rights, has launched a call for contributions. The project is to create a handbook on the domestic advocacy for implementation of Strasbourg Court judgments. Here is what is envisaged:
  
'Context and purpose

The European Implementation Network (EIN) is holding an open call for information, input and views on the issue of domestic advocacy aimed at promoting the implementation of judgments of the European Court of Human Rights (ECtHR).

This process follows on from EIN’s first General Assembly, held in Strasbourg in December 2018, at which there was wide agreement that NGOs should not only reinforce their efforts to engage in the supervision of the execution of the Court’s judgments by sending written submissions to the Committee of Ministers (CM) in accordance with Rule 9 of the Rules of the CM, but that they should also do more to push domestically for the full and effective implementation of ECtHR judgments. 

Against this backdrop, the EIN Secretariat decided to provide guidance on strategies and tools for effective domestic advocacy for ECtHR judgment implementation.  The aim of this call for information, insights and views is to identify and examine what practice exists in this respect across Europe, with a view to assessing what strategies and tools have worked, and how domestic advocacy can be further strengthened.    

The information received through this process will be compiled and analysed by the EIN Secretariat, and form the backbone of a Toolkit or Handbook for domestic advocacy for ECtHR judgment implementation, to be produced by the end of 2019. 

Procedure

This process is intended to be open and inclusive. Strategic use of ECtHR judgments to push domestically for reforms is an advocacy strategy that is still in its infancy, and a concerted effort is needed to shed light on existing good practice. The process is therefore open to NGOs, NHRIs and other civil society organisations, as well as interested individuals, who have worked on ECtHR judgment implementation. EIN members and partners are asked to not only provide answers themselves, but also to distribute this call more widely – by email, through their newsletters and on social media – to relevant organisations and people who might have interesting insights to share. Please send this email on to your respective members and partners, with a copy to director@einnetwork.org and contact@einnetwork.org, and re-tween EIN’s tweet.  

A few formalities 

Contributions must be submitted in English and should be presented in Word format, in a single document with the attached form, and submitted by email to director@einnetwork.org, Cc: contact@einnetwork.org. The submissions will not be made public, or shared with anyone outside the EIN Secretariat. The deadline for submitting contributions Thursday, 4 July 2019.'

Tuesday 4 June 2019

Finding and Understanding ECHR Case-Law

Having trouble to find relevant or important new case-law amidst the large stream of cases decided in Strasbourg? The Case-Law Information and Publications Division of the Directorate of the Jurisconsult has published an online guide to help you out. It is entitled 'Finding and understanding the case-law of the European Court of Human Rights' and available in six languages so far: English, Russian, Bulgarian, Turkish, Spanish and Ukrainian. It includes information on the HUDOC search engine, on which selections of leading cases are published, case-law guides, researhcreports, fact files and much more.A good resource to start your quest to find the right case or the most relevant new jurisprudence of the Court. Let us hope this will become available in an increasing number of languages!