Friday 20 December 2019

My new article Why Attacks on Civic Space Matter in Strasbourg

As the last post before the Christmas break, and with lots of interesting ECHR developments (not in the least today's extensive interpretation of Articles 2 and 8 ECHR by the Dutch Supreme Court in its judgment today in the Urgenda case on climate change and national policy), I am hereby happy to announce the publication of my new article entitled 'Why Attacks on Civic Space Matter in Strasbourg: The European Convention on Human Rights, Civil Society and Civic Space', published Open Access in the Deusto Journal of Human Rights (no. 4, 2019). This is the abstract:

'This article explores the role of the European Convention on Human Rights in addressing the issue of attacks on civic space, but also the potential effects of shrinking civic space on Strasbourg’s work. First, an overview of the notions of civil society and civic space is given, linking these concepts to democracy and human rights. Subsequently, the formal and informal roles for civil society in the judicial decision-making are discussed. Finally, the substantive protection offered to civil society and civic space under the ECHR and the case-law of the European Court of Human Rights is analysed. This article argues that the differentiations in theory on the varying contributions of civil society to democracy and human rights are to a large extent reflected in Strasbourg jurisprudence. Even more importantly, the ECHR system and civil society benefit from each other. This is why the current attacks on civic space are not just a problem for civil society itself, but also for the work of the European Court: it is submitted that a shrinking of civic space can also negatively affect the Strasbourg system, as the two are intertwined to a considerable extent.'

Happy holidays to all the readers of the ECHR Blog!

Thursday 12 December 2019

Call for Papers on Freedom of Expression Challenges and the ECHR

The Centre for Fundamental Rights at the Hertie School and the International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice have published a call for papers on the theme of 'Old and New Threats to Freedom of Expression. Can the European Court of Human Rights Meet the Challenges?' for a workshop to be held on 12 June 2020 in Berlin. This is the abstract of the workshop's content:

'The European Court of Human Rights says that freedom of expression is one of the essential foundations of a democratic society. It is one of the basic conditions for the progress of a democratic society and each individual’s self-fulfillment. While the ‘classic’ questions remain (when can free speech be legitimately limited within a liberal democracy), a number of modern-day challenges to freedom of expression are arising. For instance, what is the role of private online intermediaries? How does the contemporary wave of disinformation impact on rights? What questions do the extraterritorial dimensions of freedom of expression raise? We welcome submissions proposing novel analysis of both ‘classic’ freedom of expression questions, such as hate speech, political correctness, terrorist propaganda and whistleblowing and new challenges, as online expression, mis/dis-information, mal-information and ‘fake news’, the increasing concentration of media ownership, and the rise of populist expression. Particularly, we seek to explore what can the ECtHR do to address the most problematic freedom of expression-related questions raised by illiberal democracies and restrictive political regimes within Europe. Freedoms of judicial, academic, artistic, political, journalistic and corporate expression fall squarely within the goals of this workshop.'

The deadline for submission of abstracts (maximum 500 words) is 31 January 2020. Please submit to starke at hertie-school.org .  

Tuesday 3 December 2019

Launch of New Journal: European Convention on Human Rights Law Review

The landscape of academic human rights journals continues to grow. It is a pleasure to announce here that two ECHR experts, Kanstantsin Dzehtsiarou and by Vassilis Tzevelekos, are launching a new journal exclusively dedicated to the ECHR: the European Convention on Human Rights Law Review, to be published with Brill. The journal's aim is to 'connect law and practice and look at the ECHR from a multi-disciplinary perspective.' in the creators words it is 'the first scholarly journal devoted exclusively to the legal regime of ECHR. The Review offers peer-reviewed, legal scholarship on the protection of fundamental human rights within the ECHR framework and on its implications for other regional human rights regimes. It is a forum for inter alia comparative law, human rights law, international law and philosophy of law analysis of the practice and procedures of the ECHR regime. While favouring legal (doctrinal, theoretical and philosophical) analysis, the Review also publishes multi-disciplinary works at the crossroads of law, history, political science and economics. It is open to all methods and schools of thought, including, comparative, doctrinal, quantitative and economic analysis of (case) law. It offers scholarship and information of interest to scholars and practitioners, both in the member states and other regions, as well as to all those working in the field of human rights law.'

The journal accepts submissions of articles up to 18000 words, case comments of up to 10000 words and book reviews. To submit articles, click here. The new journal can also be followed on twitter: @LawECHR . 

Friday 29 November 2019

New Book on Fatherhood and the ECHR

Alice Margaria of the Max-Planck-Institut für ethnologische Forschung has just published The Construction of Fatherhood. The Jurisprudence of the European Court of Human Rights with Cambridge University Press. A great example of combining social sciences and the law. The book has already received praise from scholars who referred to it as "exemplary piece of scholarship" (Eva Brems), "a crystal-clear overview of the construction of fatherhood" (Frederik Swennen)  and "nothing short of a jewel - the author knows how to allow a highly complex, dynamic and technical theme to unfold gradually and naturally. In doing so, she has produced a 'tour de force' that is both highly enlightening and genuinely exciting to read" (Marie-Claire Foblets). This is the abstract:

'The book tackles one of the most topical socio-legal issues of today: how the European Court of Human Rights is responding to shifting practices and ideas of fatherhood. The jurisprudential analysis is situated in a context of social change that offers radical possibilities for the fragmentation of the conventional father figure and therefore urges decisions upon what kind of characteristics makes someone a legal father. In a range of paradigmatic domains, this book explores the Court's understanding of what it means to be a father today, and whether care is valued at all. It also reflects on the genesis of the Court’s (re-)construction of fatherhood, thus shedding light on the roles played by doctrines of interpretation.'

Thursday 21 November 2019

Special Issue on ECHR and Derogations

The Austrian Review of International and European Law Online has published a special issue on derogations from the European Convention on Human Rights. My SIM colleague Kustrim Istrefi  (Utrecht University) and Stefan Salomon (University of Graz) were the editors of this volume that goes into a number of country case studies of recent real or announced derogations from the ECHR in the last few years. These are the articles included in it:

* Kushtrim Istrefi and Stefan Salomon, 'Entrenched Derogations from the European Convention on Human Rights and the Emergence of Non-Judicial Supervision of Derogations'

* Benedikt Harzl and Oleksii Plotnikov, 'Ukraine’s Derogation From the European Convention on Human Rights'

* Luca Pasquet, 'The French State of Emergency: From Crime-Repression to the Protection of Public Order'

* Kerem Altiparmak and Senem Gürol, 'Turkey’s Derogation of Human Rights under the State of Emergency: Examining its Legitimacy and Proportionality'

* Vassilis P Tzevelekos, 'The United Kingdom’s Presumption of Derogation from the ECHR Regarding Future Military Operations Overseas: Abuse of Rights, Articles 17 and 18 ECHR, and à la carte Human Rights Protection'

Monday 11 November 2019

New Book on Admissibility at the European Court

Robin Schädler has published the new book Re-designing the Admissibility Model of the European Court of Human Rights with Schulthess Verlag. The book re-interprets the existing admissibility criteria with a view to making their interpretation more principled and predictable. Based on a theory of justice termed "communitarian egalitarianism", the thesis compares the stance of the European Court of Human Rights with six European constitutional courts to see whether any lessons can be learned from them. It is partly based on around 60 interviews with judges, judicial assistants and other stakeholders. This is the abstract (in German):

'Wenn der EGMR zum Thema wird, dreht sich die Diskussion üblicherweise um Urteile. Demgegenüber fristen die Unzulässigkeitsentscheidungen, welche einen Löwenanteil von 97% bis 98% aller Fälle ausmachen, ein Schattendasein. Vorhersehbar ist der Ausgang eines Verfahrens unter Umständen kaum. Der Grund dafür ist, dass der EGMR sich selbst nicht darüber im Klaren ist, für was er steht. Dies nimmt «Re-designing the Admissibility Model of the European Court of Human Rights» zum Anlass, um eine neuartige Gerechtigkeitstheorie zu formulieren, anhand welcher die bestehenden Zulässigkeitskriterien uminterpretiert werden. Dadurch wird deren Anwendung prinzipientreuer und vorhersehbarer, sodass Rechtsanwender*innen eher abschätzen können, ob sich ein Gang nach Strassburg lohnt.'

Wednesday 6 November 2019

New ECHR Readings

Please find below a new selection of recent academic articles and other documents related to the European Convention and the European Court:

* Amalte Frese and Henrik Palmer Olsen, ‘Spelling It Out−Convergence and Divergence in the Judicial Dialogue between CJEU and ECtHR’, Nordic Journal of International Law, vol. 88, issue 3 (2019) pp. 429-458:

'In this article we investigate the relationship between the Court of Justice of the European Union and the European Court of Human Rights as it manifests in explicit cross-references between the two Courts’ jurisprudence. The analysis detects cross-references, how they are used and indications of converge or divergence in the jurisprudence through their explicit citations and references. Our dataset consists of the entire corpus of judgments from both Courts from 2009 (when the EU Charter on Fundamental Rights came into force and until the end of 2016. On the basis of a content search for references to the other Court in both corpora we detect all their cross-references. We find that 1) the Courts’ use each other’s case law surprisingly little, but when they do, it is 2) primarily within the legal domains of criminal justice and immigration policies, and 3) displaying convergence towards the jurisprudence of the other Court.'

* Simone Lonati, ‘Anonymous Witness Evidence Before the European Court of Human Rights: Is It Still Possible to Speak of "Fair Trial"?’, European Criminal Law Review 1 (2018):

The purpose of this paper is to encourage a reflection on the use of anonymous witness evidence by the European Court of Human Rights. An analysis of the leading cases solved by the Strasbourg judges will provide an overview of the European case law developments on such a delicate topic, considering how the accused’s right of defence is seriously impaired when anonymous depositions are admitted in proceedings. The Court’s most recent decisions on this topic do create some concern. They represent a considerable step backward in the guaranteed right to confrontation, which, especially when dealing with anonymity, does not seem acceptable. While there is no question on the need to protect persons other than the accused in criminal proceedings and on the urgency to safeguard the safety of witnesses, when in danger, and preserve the source of evidence, on the other hand, it is hard to imagine what “counterbalancing procedures” could compensate for all that the accused is denied when the identity of the person making incriminating statements against him/her is concealed. It is, therefore, a matter of making a civilised choice, and of asking ourselves whether in a trial that still aspires to be defined as “fair”, anonymous incriminations may be tolerated.' 

* Katarina Frostell, ‘Welfare rights of families with children in the case law of the ECtHR’, The International Journal of Human Rights (published online 29 July 2019):

'This article sets out to apply a human rights perspective on welfare rights of families with children. It explores how such rights emerge in the case law of the ECtHR by focusing on traces of substantive welfare rights in the Court’s reasoning when determining the personal and material scope of ECHR rights at different stages of the proceedings. The rights under investigation are the right to non-discrimination, the right to respect for family life and the right to property. The findings show that the right to non-discrimination has in many instances managed to question gender stereotypes by taking important steps away from the biologically defined conception of motherhood towards viewing caring roles and tasks more as social functions that both social and biological parents are fulfilling. Vulnerable groups of mothers and children have had more difficulties in getting their rights protected under the present non-discrimination framework. Developments under Article 8, indicating that the right to family life includes a core element of social rights at least in the context of destitute families are therefore promising.'

* Majid Nikouei and Masoud Zamani, ‘Jurisprudence of Tolerance: Hate Speech, Article 17 and Theory of Democracy in the European Convention on Human Rights’, International Human Rights Law Review, vol. 8, issue 1 (2019) pp. 67-88:

'What does the protection or prohibition of a speech tell us about the tripartite relationship between political power, democracy and rights? This question has somehow underscored the jurisprudence of the European Court of Human Rights in hate speech cases for more than a half century. We argue that this question has invariably placed the Court in an uneasy position, which is, choosing between a democracy empowered by unlimited freedom of speech, but with recurrent social tensions, and a democracy with rather strict hate speech laws, but at ease with different segments of population. That said, the jurisprudence of the European Court outlines a pattern by which to identify a specific direction for the evolution of rights and democracy. This article considers this pattern. Not only does this article examine the pattern in the Court’s and the Commission’s jurisprudence, but it also argues that this pattern unfolds a subtle presence of Hobbesian and Lockean theories of political power and the limits in its midst. By invoking this presence, we indicate how the debate in the jurisprudence of the European Court has shifted from the language of protecting democracy to that of rights.'

* Lieneke Slingenberg, ‘The Right Not to be Dominated: The Case Law of the European Court of Human Rights on Migrants’ Destitution’, Human Rights Law Review, vol. 19, issue 2 (2019) pp. 291-314. 

'The European Court of Human Rights increasingly deals with migrants’ complaints about destitution in their host state under Article 3 of the European Convention on Human Rights (the prohibition of inhuman and degrading treatment). This case law has been criticized for not being consistent and/or for not providing migrants with enough protection. Based on a systematic case law search, in this article, I analyse Article 3 case law on migrants’ destitution from a new perspective: the concept of freedom as non-domination, as developed in (neo) republican theory. It will argue that, seen through this lens, many tendencies in the Court’s case law can be explained and constructed as consistent, and it is submitted that in this way the Court does provide migrants with important protection against unfreedom. Nevertheless, I also argue in the article that the case law could be improved in a number of ways in order to provide more effective and robust protection against domination.'

Friday 18 October 2019

René Cassin Moot Court Competition 2020

The oldest Moot Court competition on the ECHR is the French-language Concours René Cassin, held every year in Strasbourg. The case for the upcoming year's competition is now online here. The finals are often judged by moot courts including current judges from the Court, which make it an exciting competition. It is organised and run under the sposnorship of the university of Strasbourg, the Fondation René Cassin-Institut International des droits de l’Homme, the European Court of Human Rights and the Council of Europe. The 2020 edition will be held from 25 to 27 March and revolves around human rights and algorithms. For the Concours' Linkedin page including a video impression of the Competition, see here.

Tuesday 8 October 2019

New Judge Elected in Respect of Portugal

Last week, the Council of Europe's Parliamentary Assembly (PACE) elected Ana Maria Guerra Martins as the new judge in respect of Portugal. By a large majority of the votes cast she was elected for a nine year term. Currently she is an associate professor specialising in human rights at the Law School of Lisbon University and a member of the European Commission's European Network of Legal Experts in Gender Equality and Non-Discrimination. Between 2007 and 2016 she also served as a judge on the Constitutional Court of Portugal. 

The new judge will succeed Paulo Pinto de Albuquerque on 1 April 2020, the judge well-known for his many separate, dissenting and concurring opinions that have been a feast for external Strasbourg watchers and case-law analysts.

Thursday 3 October 2019

September Issue of NQHR Online

The September 2019 Issue (Vol. 37, No. 3) of our Netherlands Quarterly of Human Rights is now online. It includes three articles directly related to the ECHR:

* Eva Brems, 'Positive subsidiarity and its implications for the margin of appreciation doctrine': 

'The article presents an argument in favour of a richer theory of subsidiarity in the European Court of Human Rights context. In particular, the proposal is to include what is called a ‘positive’ dimension in subsidiarity thinking. That is to say, the article argues that the scholarly and political debate on ECHR subsidiarity has focused mostly on ECHR restraint, associated with a wide margin of appreciation for the States Parties. There is however a complementary dimension in the subsidiarity layout, which concerns the responsibility of national authorities to offer first-line protection of Convention rights. The article examines the role the European Court of Human Rights can play in facilitating that first-line responsibility. The article explores what this means for the margin of appreciation of national authorities.'

* Lize R. Glas, 'The European Court of Human Rights supervising the execution of its judgments':

'The European Convention on Human Rights (‘Convention’) provides that the Committee of Ministers shall supervise the execution of the European Court of Human Rights’ (‘Court’) judgments. This article aims to address the question whether, despite what the Convention provides, the Court is involved in supervising the execution of its judgments. Additionally, this article addresses the question what the Court does when it is engaged in this exercise. In order to answer these two questions, four aspects of the Court's practice that are linked to the execution process are examined. These are the four aspects of interest: just-satisfaction judgments under Article 41 ECHR, follow-up cases concerning individual measures, follow-up cases concerning general measures and the pilot-judgment procedure. The analysis of these aspects will lead to the conclusion that the Court indeed engages in supervising execution, but also that this does not mean that the Court is taking on the Committee's task and that supervising execution has not become in any way part of the Court's day-to-day work.'

* Francesca Camilleri, 'Compulsory vaccinations for children: Balancing the competing human rights at stake':

'Vaccination for children has been a controversial topic for decades and lately it has regained particular importance. We have seen an increase in vaccine hesitancy and decrease in vaccine confidence throughout Europe, particularly due to vaccine-safety concerns by parents. Consequently, vaccination rates for children have dropped and this in turn has led to an increased spread of vaccine-preventable infectious diseases, such as measles. As a reaction to this phenomenon of vaccine hesitancy, several European countries have introduced, while others are in the process of introducing, laws making vaccinations compulsory for children for a number of vaccine-preventable childhood diseases. The introduction of such laws affects and gives rise to several competing interests of the parents, the child and the State. Against this background, this article seeks to determine how the European Court of Human Rights should balance the competing human rights that are at stake in cases concerning compulsory vaccinations for children.'

Tuesday 24 September 2019

European Human Rights Moot Court Competition

The call for applications for the 8th edition of the European Human Rights Moot Court Competition (EHRMCC) has been put online. The EHRMCC is the largest English-language human rights moot court competition in the world. It offers excellent opportunities for students from all over Europe to improve their written and oral advocacy skills through simulating the procedures of complaint for the European Court of Human Rights. With this 8th edition of the Competition, the organising European Law Students' Association (ELSA) is introducing mandatory Regional Rounds. This is an excellent opportunity for all participants to improve their oral advocacy, network with fellow participants from all over Europe and prepare for the Final Oral Round! The three Regional Rounds will take place in the United Kingdom, Germany and Lithuania. During the Final Oral Round in Strasbourg, the finalists will plead in front of current Judges of the Court, meet distinguished human rights experts and enjoy grand ceremonies as well as take part in 18 Preliminary Rounds, 4 Quarter Finals, 2 Semi Finals and one Grand Final in the Grand Chamber. 

The fictitious case of the 8th edition of the EHRMCC concerns events surrounding a military operation, which took place in the context of an international armed conflict. In the case, complaints were lodged under Articles 2, 3, 6, 8, and 13 of the European Convention on Human Rights. You can read more about the Competition here and for any enquiries please contact Sarah Ikast Kristoffersen at academicactivities at elsa.org.

Wednesday 18 September 2019

MOOC on ECHR Open for Participation Again

This month, the newest run of our Massive Open Online Course (MOOC) on the ECHR 'Human Rights for Open Societies' is open for participation again (and a next edition will run from November onwards for which you can register already). Join the more than 16,000 students from across the globe interested in the ECHR system and human rights! For more information see our teaser video here:
Our course covers both the system and general principles of the European Convention as well as a range of specific topics connected to open societies: the linkages between the ECHR and democracy, the issues of non-discrimination and vulnerable groups, and freedom of expression and assembly. Or, as one of our participants stated: 

"By giving concrete examples, the course is able to explain, even simplify, complex (legal) concepts and cases. I strongly recommend this course for everyone wishing to have basic knowledge on how the ECHR system works."

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!

Friday 5 July 2019

Information on Involvement of Civil Society and NHRIs in Execution of Judgments Phase

While in law schools we tend to focus ourselves and our students on the judgments of the Court (and so do many practitioners), a crucial phase, that of implementation, of course only starts after a judgment has been delivered. In the ECHR system, the Committee of Ministers is tasked with the supervision of the execution of judgments. It is supported in that role by the Council of Europe's Department for the Execution of Judgments. Since 'ears and eyes' on the ground are often very useful to provide context and addition information, this post-judgment phase allows for a degree of involvement of civl society nad national human rights institutions (NHRIs). The Department has now launched a special web page which gives an overview of how to do this. Since this information was previously not easily available, this is a very useful resource, which has come about at the request of civil society itself. The page includes an Information Note on best practices of how and when to address the Committee of Ministers. It also includes a useful flowchart of the timeline as well as the possibility to subscribe to an RSS feed to remain updated on relevant cases. Thus, the website reflects an important improvement in terms of information and accessibility, although additions would still be useful, according to the European Implementation Network.

And a small note: this is the 1001st post on this ECHR blog since its inception!

Monday 1 July 2019

CoE Book on Individual Application under the ECHR

The President of the European Court of Human Rights, Linos-Alexandra Sicilianos, and Maria-Andriani Kostopoulou, a lawyer at the Greek Court of Cassation, have co-authored a new concise book (180 pages), entitled The individual application under the European Convention on Human Rights. It has just been published with the Council of Europe. This is the publisher's abstract:

'An indispensable practical guide for any potential applicant and any legal professional.

This book, which is a practical guide aimed at both professional lawyers and potential applicants, clearly and comprehensively describes and analyses the main stages in the processing of an application before the organs of the European Convention on Human Rights.

Detailed descriptions are provided of the Convention system, the Rules of the European Court of Human Rights and the procedures which the Court has developed to expedite and optimise case processing.

Crafted by two specialists on the Convention, Linos-Alexandre Sicilianos, the current President of the European Court of Human Rights, and Maria-Andriani Kostopoulou, a lawyer at the Greek Court of Cassation, the book does not merely explain how to prepare and lodge an application, in particular as regards the formal requirements and admissibility criteria; it also presents a detailed assessment of a case by the various formations of the Court, covering all stages right through to the conclusion of proceedings. Finally, having analysed the judicial stage, the book goes on to describe the procedure for supervision of the execution of judgments before the Committee of Ministers of the Council of Europe.'

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!

Friday 31 May 2019

First Infringement Proceedings Judgment of the European Court : Ilgar Mammadov v Azerbaijan

It is a season of firsts for the European Court of Human Rights. After its first Advisory Opinion under Protocol 16 last month, about which I reported earlier, this week the Grand Chamber has handed down its first judgment re infringement proceedings: Ilgar Mammadov v Azerbaijan. Mammadov is an Azerbaijani opposition politian and human rights activist who had been imprisoned from 2013 to 2018 and for many years the Council of Europe, other international organisations, and many NGOs had been calling for the release of this political prisoner. In this week's judgment, the Court unanimously found that the steps taken to implement the original judgment in the Ilgar Mammadov case of 2014 had only been limited and that as a result it could not be said that Azerbaijan had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment. As a result the country had failed to fulfil its obligations under article 46 of the ECHR to abide by the Court´s original judgment. This very damning appraisal of how Azerbaijan deals with its European Convention on Human Rights obligations is the first outcome of the so-called infringement proceedings.

The idea of infringement proceedings

The idea to create infringement proceedings within the ECHR system was first floated in the Parliamentary Assembly of the Council of Europe (PACE). Such proceedings were meant to make the implementation of the judgments of the Court more effective - even if by international comparison, then and now, the Strasbourg system's record is one of the more hopeful among international human rights institutions. Initially, the starting point was to give teeth to the proposal by including the idea of fines for states that persistently delayed the execution of judgments. Introducing infringement proceedings eventually became part of the wholesale reform of the Court in Protocol 14 to the ECHR of 2004, which entered into force in 2010. An amended version of Article 46, on the binding force and execution of judgments, from then onwards included a fourth paragraph, stating: 
"If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1."
Paragraph 1 obliges State Parties to abide by the final judgments of the Court in cases to which they are parties. The amendment of Article 46 should be seen in the wider context of the large influx of cases reaching the European Court of Human Rights already in those days. The underlying idea was that the better and more efficient the Committee of Ministers could make sure states implement the Court´s judgments, the less new human rights complaints would come to Strasbourg. The option of bringing infringement proceedings for states refusing to comply with judgments was therefore added, in the shape of the new Article 46(4) to the Convention. One may note that this is not about (temporary) inability, but about unwillingness to secure ECHR standards. Thus infringement proceedings were meant to be used only in exceptional circumstances. The final formulation did not include a system of fines and may thus have lost some of its teeth (or crucial fangs, some might say), even if the moral and political message was still clear. As the State Parties phrased it in the Explanatory Report to Protocol 14:
"This infringement procedure does not aim to reopen the question of violation, already decided in the Court’s first judgment. Nor does it provide for payment of a financial penalty by a High Contracting Party found in violation of Article 46, paragraph 1. It is felt that the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned."
Today, one can conclude that indeed the starting point of exceptionality has been heeded by the Committee of Ministers, as these first ever infringement proceedings in the Mammadov case were only initiated at the end of 2017. The reason was the continuing refusal by Azerbaijan to unconditionally release opposition politician Ilgar Mammadov following the Court´s 2014 judgment.

Origins of the Mammadov case

Ilgar Mammadov was the co-founder and chair of the Republican Alternative Civic Movement (“REAL”), a political party on whose ticket he planned to run for the 2013 presidential electinos in Azerbaijan, He also blogged on topical political issues, including being very critical about parliament, for the adoption of a law that introduced heavy penalities for unauthorised demonstrations. In early 2013, he also reported on riots in the town of  Ismayilli, afterr visiting the place. He blamed the unrest on "corruption and insolence" of public officials.Within a few weeks, he was charged with the offences of organising or actively participating in actions causing a breach of public order and detained on remand from 4 February 2013 onwards. Later, the charges were changed to the offence of resistance or violence against public officials, posing a threat to their life. In March 2014, he was sentenced to seven years in prison. But even before that, on 25 February 2013, he had lodged his first complaint with the European Court of Human Rights, relating mainly to the pre-trial detnetion and the abuse of power by the Azerbaijani authorities, who in his view tried to silence an opposition politician. 

Issuing its judgment on 22 May 2014, rather fast for Strasbourg, the Court found violations of the right to liberty (Article 5 ECHR), as Azerbaijan had not shown that there was a "reasonable suspicion" that Mammadov had committed an offence nor that there had been a genuine review of lawfulness of his detention. Due to statements about his guilt from the public prosecutor and the Ministry of the Interior, the Court also found a violation of the presumption of innocence (Article 6(2) ECHR). But no doubt the most damning part of that judgment for Azerbaijan is that the Court also found a violation of Article 18 ECHR in conjunction with Article 5. Azerbaijan was to pay 20,000 euros for non-pecuniary damage suffered by Mr Mammadov. However, the judgment did not specify which particular measures Azerbaijabn should take to remedy the situation, releasing Mr Mammadov being the obvious one among those.

Notably, the finding of a violation of Article 18 entails that the Court concluded that Azerbaijan had acted in bad faith under the Convention. The Court agreed with Mr Mammadov's contention that the real reason to detain and convict him was not because they suspected him of having committed a crime, but rather to silence or punishing him for his critiques of the government. The object of Article 18 is to prohibit the misuse of power and violations are very rarely found. In fact, there are less than a dozen in the Court´s entire case-law - several others of which also against Azerbaijan by the way (see for an overview the Court´s case-law guide on Article 18, avaialble in English, French and ... Azerbaijani!). Since this points to such fundamental problems with the rule of law, the issue of Article 18 would also resurface in the infringement proceedings later on.

In a separate, later application, Mammadov also complained about grave inadequacies in the trial leading up to his conviction. The Court, in the second Mammadov judgment of November 2017, concluded that his trial had indeed been unfair and found a violation of Article 6(1) ECHR.

From supervision to infringement

As in the aftermath of all Strasbourg judgments in which Convention violations are found, the arena of contention then shifted to the Committee of Minsters, the body responsible for the supervision of implementation of judgments. In a series of decisions and interim resolutions, the Committee called upon Azerbaijan to fully remedy the situation and to immediately and unconditionally release Mr Mamamdov. Because of the violation of Article 18, the case was seen as so important that for many years it was discussed, and this is very exceptional (see the clear overview by Lize Glas here), at each of its human rights implementation meetings. As Başak Çali notes on Verfassungsblog in her comment on this week's judgment, Azerbaijan emphasized that the original judgment itself had not ordered it to release Mammadov. Such was the dragging of its feet by Azerbaijan, that eventually, in 2017, the discussion in the Committee reached its boiling point. A sufficient number of states (under Article 46(4) a two-thirds majority is necessary) simply lost patience and trust in Azerbaijan to such an extent that in June of that year the option of infringement proceedings was first floated. In September the Secretary-General of the Council of Europe, Thorbjørn Jagland, called upon the Committee to actually take that step and in October, Azerbaijan was notified of the Committee's intention to launch infringement proceedings. Finally, in December 2017 the proceedings were formally started. In its interim resolution, the Committee held:
"[B]y not having ensured the applicant’s unconditional release, the Republic of Azerbaijan refuses to abide by the final judgment of the Court; Decides to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1".
As a point of note, all of this relates to the first Mammadov judgment, although the developments surrounding the criminal trial against him (the issue of the second judgment) of course played a big role in assessing whether Azerbaijan was implementing judgment No. 1. Not in the least because of timing, as Mammadov No. 2 was issued in November 2017, right in between the Committee's notification of intention and the actual launch of the proceedings.

The judgment itself

And so the ball, or the hot potato, returned back to the premises of the European Court of Human Rights. And so the Court, taking up this new role, had to assess implementation of its own judgment, a function normally accorded to the Committee of Ministers in the Strasbourg system. By some the infringement procedure has been called a nuclear option, but this comparison no longer works as its very use in this case shows that the deterrent effect of its mere existence was not sufficient. Nor are its outcomes of the scale of a nuclear explosion. However, there was some effect, crucial for the applicant. While the Committee of Ministers kept the issue on its agenda and kept calling for its release and while the Court was considering the issue, on 13 August 2018, Mr Mammadov was released as a result of an Appeal's Court judgment in Azerbaijan. A year later, in March 2019, the Supreme Court amended this judgment, taking away the probationary conditions. But overall, the conviction still stood - even if no longer detained, Mr Mamadov still had a criminal record under domestic law. 

In the procedure itself, apart from the applicant and the state, the Committee of Ministers also provided comments, all of them also giving input on the situation after Mammadov's release. The Court dismissed Azerbaijan's argument that as a result of the release, there was no longer a need to discuss the issue - specifically pointing to the fact that the Committee of Ministers had not decided to withdraw the proceedings (paras. 143-146).

As this was the first judgment of its kind, the Grand Chamber of the Court had to set out certain boundaries on how it would deal with the case. First, it tried to elucidate its own task under the infringement proceedings. From the drafting history of Protocol 14, it concluded that the main aim of such proceedings was to "increase the efficiency of the supervision proceedings – to improve and accelerate them." (para. 160). It also noted that the Committee of ministers had developed an extensive acquis in its supervision of implementation of judgments and found (para. 166): 
"[T]there is no indication that the drafters of the Protocol aimed to displace the Committee of Ministers from its supervisory role. The infringement proceedings were not intended to upset the fundamental institutional balance between the Court and the Committee." 
As to the material scope of what was to be considered under these infringement proceedings, the Court identifies that even if the Committee of Minister's request was wide, the supervision practice of the Committee shows that actually its focus was on the invidual measures (Mr Mamamdov's requested unconditional and immediate release) and that thus "the essential question in this case is whether there has been a failure by the Republic of Azerbaijan to adopt the individual measures required to abide by the Court’s judgment regarding the violation of Article 18 taken in conjunction with Article 5" (para. 176). The other elements in the case, of just satisfaction and of general measures, could in principle fall within the scope of infringement proceedings, but in this case they did not require "detailed examination" (para. 177). The former because the monetary compensation had been paid and the later "as a matter of procedure that any general measures required in the present case should be supervised in the context of other similar cases" (ibid.). The Court then goes on to mention that the Committee of Ministers is dealing with a number of other Article 18 cases against Azerbaijan. On the wider, systemic issues of the rule of law in Azerbaijan, the ball is thus kicked once again to the courtyard of the Committee of Ministers. This may be the most disappointing element of the judgment to some, as one might expect the Court, once the very heavy option of infringement proceedings is used by the Committee, that the Court obliges by going beyond the - in itself very important - finding of lack of "good faith"" in securing Convention rights by Azerbaijan. Maybe the hot potato metaphor is the best to use here after all... But then, others may argue this is not the Court´s role.

In then reviewing, within this limited material scope, whether Azerbaijan has complied with the Court's original judgment, the Court makes some very important points. It states that its own judgments are declaratory and rarely indicate specific measures to be taken. But "the absence of an explicit statement relevant to execution in the first Mammadov judgment is not decisive for the question whether there has been a failure by Azerbaijan to fulfil its obligations under Article 46 § 1. What is decisive is whether the measures taken by the respondent State are compatible with the conclusions and spirit of the Court’s judgment" (para. 186). In the particular case, since the imposition of charges against Mammadov had been contrary to Article 18, "the Court’s finding of a violation of Article 18 in conjunction with Article 5 of the Convention in the first Mammadov judgment vitiated any action resulting from the imposition of the charges" (para. 189). And in no way had Azerbaijan shown that it was impossible for it offer restitutio in integrum the situation along those lines (an exception granted under general international law, paras. 190-194). Here the Court buttresses the stance taken by the Committee of Ministers.

A separate issue was the temporal scope to be considered in answering whether a state complies with a judgment of the Court. On that issue, the Court decided that it would not assess ex nunc, but that the starting point should be the moment of referral to the Court by the Committee of Ministers (paras. 170-171). In this case, that moment was 5 December 2017 and thus before the release of Mammadov from prison and before the final domestic judicial decisions. Applying this restricted temporal delimitation, the Court mostly looked at the compensation paid and an initial action plan of Azerbaijan. The Court did also mention the release and the later domestic judgments, but notes that those postdate the start of the infringement proceedings (para. 2016). In conclusion, it holds that the limited steps taken are insufficient.

In both dimensions, material and temporal, the Court thus does not turn an entirely blind eye to the wider context (general measures, later developments), but neither does it evaluate it in detail. In that respect, this judgment, which should have helped to clarify, still leaves a lot of flexibiltiy (or unclarity, depending on how one looks at it). It certainly offers the possibility for the Committee of Ministers to be much more specific in future cases, if it wants the Court to pronounce itself on either a wider general measures to be implemented by the state or more recent implementation developments. The current judgment, through these limitations, in this sense leaves one with the feeling that the Court is only stating the very obvious (that Azerbaijan was clearly going against the Convention obligatinos by not acting in good faith) but still not unequivocally solving the case by giving a clear pronouncement on what would be sufficient action to be taken in the wider context. The result may be that Azerbaijan may just continue dragging its feet in the Committee of Ministers.

The Court ends by stating (para. 217):
"[T]hose limited steps do not permit the Court to conclude that the State party acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment."
A final point of note: while the judgment was unanimous, three concurring opinions, by no les than seven judges in total are attached to the judgment. Some the critiques of the Court´s reasoning are so strong and fundamental that - as Kanstantsin Dzehtsiarou tweeted soon after the judgment - two of those do not read as concurring opinions from a legal perspective. It seems that the importance of sending a unanimous signal to the state concerned in this crucial judgment even impacted the labelling of the opinions.

Conclusion: dark clouds remain

Within hours after the judgment, Mammadov was allowed to brief representatives of the Committee of Ministers through video conference (see the footage here). While he showed gratitude for the great help by the Council of Europe´s institutions, he still deplored that the Azerbaijani authorities do not allow him to run for political office nor have expunged his criminal record.

The Mammadov saga plays out against a background full of dark political clouds: the very contested role of Azerbaijan in Council of Europe bodies. Just last year, an independent report commissioned by the Parliamentary Assembly was published in which problems of corruption connected to Azerbaijan's wheeling and dealing in the Assembly itself were highlighted. Undoubtedly, the current infringement procedure gives new impetus to discussions, about that country and others, on the point at which the flouting of Council of Europe commitments and standards reaches such a crisis point that a state should be ousted from the organization. The huge dilemma remains the same however: whereas such a step might have some political effect to make a state change course, it would lead to barring off the Strasbourg Court as an institution of last resort for human rights victims in the countries at stake. It is not just the oil from a resource-rich country that has a foul smell and nasty stick in this case.