Tuesday 20 August 2019

Updated Case-Law Guide on Article 1 ECHR

The Court has now made an updated version of its case-law guide on Article 1 ECHR available on its website. The Convention provision, as is well-known, provides that states "shall secure to everyone within their jurisdiction" the rights in the Convention. The case-law guide on this obligation to respect human rights specifically goes into the very contested concepts of jurisdiction and imputability, both notions that have spawned virtual bookshelves of academic literature. All case-law guides are available on the Court's website and now also include a number of translations into Chinese, including on the right to free elections, fair trial, the prohibition of forced labour and the right to liberty.

Wednesday 14 August 2019

New ECHR Readings

Please find below a number of new ECHR-related readings for Summer reading:

* Stephen Skinner, Lethal Force, the Right to Life and the ECHR. Narratives of Death and Democracy (Bloomsbury Professional; book):

'In its case law on the use of lethal and potentially lethal force, the European Court of Human Rights declares a fundamental connection between the right to life in Article 2 of the European Convention on Human Rights and democratic society. This book discusses how that connection can be understood by using narrative theory to explore Article 2 law's specificities and its deeper historical, social and political significance. Focusing on the domestic policing and law enforcement context, the book draws on an extensive analysis of case law from 1995 to 2017. It shows how the connection with democratic society in Article 2's substantive and procedural dimensions underlines the right to life's problematic duality, as an expression of a basic value demanding a high level of protection and a contextually limited provision allowing states leeway in the use of force. Emphasising the need to identify clear standards in the interpretation and application of the right to life, the book argues that Article 2 law's narrative dimensions bring to light its core purposes and values. These are to extract meaning from pain and death, ground democratic society's foundational distinction between acceptable force and unacceptable violence, and indicate democratic society's essential attributes as a restrained, responsible and reflective system.'

* Ramute Remezaite, 'Challenging the Unconditional: Partial Compliance with ECtHR Judgments in the South Caucasus States', Israel Law Review, Volume 52, Issue 2 (2019) pp. 169-195:

'The European human rights system has long been seen as one of the greatest European achievements, with its European Court of Human Rights (ECtHR) as the world's leading human rights court. Current turbulent times, however, pose serious challenges to the European system, which is increasingly being contested by the deepening ‘implementation crisis’. The absolute obligation of member states of the Council of Europe (CoE) to abide by ECtHR judgments under Article 46 of the European Convention on Human Rights has been increasingly compromised by the selective approach of states, often resulting in minimal, dilatory, lengthy or even contested compliance with ECtHR judgments. As the implementation backlog has grown largely after the accession to the CoE of the newly emerged states, as aspiring democracies, in the late 1990s and early 2000s following the collapse of the Soviet Union, this article analyses the compliance behaviour of these states by looking at the South Caucasus states: Armenia, Azerbaijan and Georgia. The research findings suggest that partial compliance is a very likely form of compliance in the South Caucasus states as democratising states, and that some of the factors that explain such behaviour discussed in the article may be distinctive of states that joined the CoE as emerging democracies after the collapse of the Soviet Union. These states continue to display various vulnerabilities in the areas of human rights, the rule of law and democracy. This, in turn, has serious implications for the whole European human rights system and its ability to ensure that states’ commitments to the CoE are duly respected in the longer term.'

* Manon Julicher, Marina Henriques, Aina Amat Blai, and Pasquale Policastro, ‘Protection of the EU Charter for Private Legal Entities and Public Authorities? The Personal Scope of Fundamental Rights within Europe Compared’, Utrecht Law Review, volume 15, no. 1, pp. 1-25 (2019).

'The personal scope of the Charter of Fundamental Rights of the European Union (the Charter) is an area that still needs to be defined by the Court of Justice of the European Union (CJEU). The issue surrounding the personal scope entails the question of who can claim the protection of fundamental rights. A particularly controversial matter has proved to be the question whether, and if so under what circumstances, private legal entities and public authorities can invoke fundamental rights. This article aims to provide a detailed examination of the ‘landscape’ the CJEU must take into account when dealing with the personal scope of the Charter in the future. Firstly, this landscape is made up of the background and objectives of the EU and the European Convention on Human Rights (ECHR) legal systems. Secondly, it is shaped by the personal scope application of the Charter as interpreted by the CJEU so far, and the personal scope application of the ECHR as interpreted by the European Court of Human Rights (ECtHR). Finally, the application by Member State courts of fundamental rights, via the Charter, ECHR and constitutional rights, forms an element in this landscape. An examination of these aspects will provide answers to the question of how the three main players on the European fundamental rights stage – the CJEU, the ECtHR and the national courts – have applied the personal scope of their fundamental rights up to now. This also encompasses answers to the question of how these applications relate to the different background and objectives of the ECHR and the EU legal systems. These answers will provide the CJEU with tools to deliver well-informed rulings on the personal scope of Charter provisions in the future.'

* Antal Berkes, ‘Concurrent Applications Before the European Court of Human Rights: Coordinated Settlement of Massive Litigation From Separatist Areas’, American University International Law Review, vol. 34, issue 1 (2019) pp. 1-88:

'“Concurrent applications” are defined as applications filed with the European Court of Human Rights (ECtHR) by several individuals and/or a State or States concerning the same factual context, and directed against one or several States, while a substantially analogous matter has already been submitted to one or more other procedures of international investigation or settlement. The present paper submits that the settlement of concurrent applications from separatist areas is feasible through the strategic use of existing procedural tools of the ECtHR without introducing a separate mechanism or further constitutionalizing the Convention to the detriment of individual justice. The Court should settle such concurrent applications in a coordinated way, taking into account the interconnected legal and factual background as well as procedural and substantive law questions of concurrent cases in individual procedures. Each case having its own factual specificities, the broader context and legal background make the concurrent applications interconnected.'

* Analie Frese and Hendrik Palmer Olsen, ‘Citing Case Law: A Comparative Study of Legal Textbooks on European Human Rights Law’, European Journal of Legal Studies, volume 11, issue 1 (2019, Open Access):

'Recent years have seen increased interest in data-driven methods in legal research. Technologies provide new automated alternatives to traditional doctrinal approaches, which rely on manual information retrieval. In this article, we address one aspect of this development. On the basis of a citation network containing judgments on Article 14 of the European Convention of Human Rights, we identify which cases are most frequently cited and explicitly used in the legal argumentation of the European Court of Human Rights. We subsequently compare our findings with presentations of Article 14 in German, French and British textbooks. We aim to demonstrate that 1) network analysis can provide relevant input to legal analysis by relying on objective measures of case importance and 2) scholarship relying on traditional doctrinal methods is more dependent on the authors’ subjective outlook than necessary.'

* Ronan Ó Fathaigh, ‘The Chilling Effect of Turkey’s Article 301 Insult Law’, European Human Rights Law Review, issue 3 (2019) pp. 298-308:

'This article discusses how the approach of the European Court of Human Rights has evolved in seeking to protect freedom of expression from the chilling effect of Turkey’s controversial Article 301 insult law. The article reveals the early reluctance within the Court in finding that the law’s provisions were incompatible with freedom of expression, and yet, the analysis now demonstrates how the Court’s concern for the chilling effect has led the Court to two adopt notable approaches: first, the Court permitting applicants to argue that the law, in and of itself, violates the European Convention on Human Rights, even where an applicant has not been convicted, nor even prosecuted under the law; and second, the Court’s application of its rarely-used competence under Article 46 of the European Convention, finding that amending Article 301 would “constitute an appropriate form of execution” of the Court’s judgment.'

* Ronan Ó Fathaigh and Dirk Voorhoof, ‘Article 10 ECHR and Expressive Conduct’, Communications Law, vol. 24, issue 2 (2019) pp. 62-73:

'The European Court of Human Rights has recently delivered a series of judgments finding violations of the right to freedom of expression over convictions for engaging in expressive conduct. The purpose of this article is to discuss the European Court’s recent case law on expressive conduct under Article 10 of the European Convention on Human Rights, and in particular to assess in what circumstances, if any, domestic courts may impose prison sentences, even if suspended, on individuals engaging in peaceful, but provocative and offensive expression.'

'In this chapter, we propose two different methods to identify what we call polymorph principles in the practice of the European Court of Human Rights, i.e. principles of law that are not directly related to the interpretation of one or few articles in the convention, but are applicable to a case independent of its substantial content. Examples of these principles could be interest rates when states pay reparations, the quality of evidence or the relation between the ECtHR and the contracting states.

Since these transverse precedents are not easily identifiable in the ECtHR’s own database and since they are only occasionally taken under direct treatment in textbooks, we propose two methods to extract them from the more than 17.000 judgments that comprise the practice of the ECtHR. We use the citations between judgments to identify patterns where a precedent is cited by many different types of cases, indicating that the precedent is relevant no matter what article constitute the core of the case.

We conclude that the two different methods, both building directly on earlier research in automatic identification of case content based on citations to other cases and convention articles, yield satisfying results and provides another angle of entrance to the practice of the ECtHR, especially when combined to remove the largest possible amount of false positives.'

Monday 12 August 2019

Book on Principled Resistance to ECtHR Judgments

A bit over two years ago, professor Marten Breuer of the University of Konstanz organised a great expert conference on the issue of states and their domestic courts resisting in various more or less principled ways the judgments of the European Court of Human Rights. He has now published an edited volume on the topic with Springer, entitled Principled Resistance to ECtHR Judgments - A New Paradigm?. As with the conference, the great asset of the book is that it includes both a set of detailed country case studies, including on Russia, Germany, the United Kingdom and Italy among others, as well as more cross-cutting chapters on the notion of 'principled resistance', its sociological and institutional consequences, the role of the Venice Commission and the issue of national (legal) identity. Well worth a read not just for those interested in the broader backlash-against-international-courts literature, but also for those wanting to look beyond ideological and political debates and more interested in what domestic courts actually do, in detail. This is the summary:

'The book analyses the position of the ECtHR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECtHR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECtHR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept  - 'principled resistance' - to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind 'principled resistance' shows enough commonalities in order to qualify such incidents as expression of a 'new paradigm'.'

Many congrats, Marten!