Friday 31 January 2020

Conference at the European Court of Human Rights on Women's Rights

In two weeks, on 14 February 2020, the European Court of Human Rights, with the Fondation René Cassin - International Institute of Human Rights and with the support of the General Consulate of Japan in Strasbourg, will host a conference on 'Women’s Human Rights in the Twenty-First Century: Developments and Challenges under International and European Law'. The full programme can be found here. This is what the conference will address:

'Women have been historically discriminated in society. Based on assumptions about the “natural” gender roles in society, women have been denied important rights from the suffrage, the right to sign contracts or perform work outside the home to custody rights. Over the last century, important developments have taken place. The conceptualization of women’s rights as human rights and their incorporation into international law played an important role in this. Women’s equality became the subject of international documents such as the UN’s Convention on the Elimination of Discrimination against Women, the 1995 The Beijing Declaration and Platform for Action, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women or more recently the Council of Europe Convention on preventing and combating violence against women and domestic violence. In addition, supranational courts such as the Inter-American Court of Human Rights, the European Court of Human Rights, the International Criminal Court or the Court of Justice of the European Union have responded to women’s demands by an increasingly gender-sensitive reading of different international and regional legal norms. Notwithstanding, women’s full equality has not yet been achieved. Women everywhere are still subject to different forms of violence in war and in times of peace, in the public and the private spheres, they earn less and are facing higher poverty rates than men, are under-represented in positions of power in fields like politics, on the boards of companies and on the benches of the highest national and international courts and face other gender-specific forms of discrimination such as poor access to justice and to sexual, reproductive and maternal care.

This conference aims to discuss a few aspects of the state of women’s human rights and the challenges to achieving gender equality in the twenty-first century. It will do so by looking at developments in the field of gender equality under International and European Law and before regional courts, particularly the European Court of Human Rights.

The conference hopes to provide a forum of reflection on gender equality for members of the judiciary, legal practitioners, academics, representatives of European institutions and non-governmental organizations, as well as other professionals.

The event is open to the public. Should you be interested to register or have any questions, please contact: until 7 February 2020 and please bring your ID in the day of the conference. If you have a Council of Europe badge, please register before 12 February. Members of the Council of Europe who did not register are welcome to attend should there be any available places in the room.'

Thursday 30 January 2020

ECHR MOOC Runs Again on 10 February 2020

On 10 February, our MOOC (Massive Open Online Course) ‘Human Rights for Open Societies. An Introduction into the European Convention on Human Rights' starts again on the Coursera platform. This online course is for everyone who is interested in the protection of human rights and the idea of open societies. More than 17,000 enthusiastic learners participated in the previous editions. I have developed it together with my SIM and Utrecht University colleagues Janneke Gerards, Paulien de Morree and Claire Loven. Find out more and enroll here and/or watch the video trailer below: 

Wednesday 29 January 2020

Call for Papers 70 Years ECHR Conference at Ghent University

On 18-20 November 2020, the colleagues over at the Human Rights Centre of Ghent University will be organising a conference to celebrate that the ECHR will turn 70 earlier that month. The conference 'The European Convention on Human Rights turns 70. Taking Stock Thinking Forward' will look both at the history, present and future of the Convention. A call for papers has just been issued. This is the organisers conference info - a great opportunity to listen to and debate with some of the great ECHR experts:

'The Conference’s format is devised to facilitate reflections that celebrate achievements without ignoring challenges. The aim is to create a panorama of the most important features of the ECHR system, in a critical perspective that is socially, historically and politically aware. 

The Conference wants to be a meeting place for the scholarly community researching the ECHR, in addition to reaching out to practitioners and civil society. 

Confirmed plenary speakers include Professors Başak Çali, Marie-Bénédicte Dembour, and Marco Duranti. The closing plenary session will feature European Court of Human Rights' President Sicilianos and Vice-President Spano in conversation with Professor Eva Brems. 

An innovation of the Conference will be a Strasbourg Observers Live format. In a variation on our Strasbourg Observers blog, we encourage scholars in this conference stream to briefly yet critically discuss a single ECtHR judgment. In addition, the Conference will feature more classical academic papers. Papers will be selected for the reflective value they provide on the ECHR system, and with an eye to composing coherent panels. 

We welcome submissions by junior as well as senior scholars on any ECHR-related topic, including, but not restricted to, the following research interests currently being pursued within the HRC:

- Non-legal approaches to the ECHR
- Historical analysis of legal reasoning by the ECtHR
- The ECHR in comparative perspective
- The ECHR in interaction with domestic law
- National perspectives on ECHR history
- The impact of ECtHR judgments in detention cases
- Evidence in the ECHR system
- The ECHR and (digital) technologies

Submissions should be made in Easychair by Wednesday 15 April 2020 and include:

- Title of the submission
- Abstract of up to 300 words
- If intended for the ‘Strasbourg Observers Live’ stream, please specify
- Contact details and brief biography (up to 50 words) for each author

We will respond to all submissions by 17 June 2020.'

Monday 20 January 2020

Guest Post on Hungary's Suspension of Pilot Judgment Implementation

It is my pleasure to present another guest post by professor Renata Uitz of Central European University in Budapest. Her comments go into the decision of the Hungarian government of a few days ago of suspending the effect of the pilot judgment of Varga and others about prison conditions contrary to Article 3 ECHR. All the more remarkable as Hungary's record on implementation on this particular issue had seemed rather positive until now. 

Hirst Meets Burdov in Hungary’s New Year Resolution: The Hungarian Government Suspends the Enforcement of a Pilot Judgment 

Renata Uitz

On 18 January 2020, a secretary of state in the Ministry of Justice announced the adoption of a Government resolution that suspends the payment of compensation for inmates facing inhuman and degrading detention conditions in Hungarian prisons. According to the official statement the suspension is meant as a first step in eradicating the abuse of EU law (sic) and Hungarian law through what was labeled as the „prison business” in Hungary. Accordingly, the Hungarian government will review the application of the law that put in place a compensation for inhuman prison conditions. As to the scale of said „prison business:” according to the secretary of state some 12.000 lawsuits have been commenced so far and the amounts of compensation paid reach HUF 10 billion (approx. EUR 30 million) so far.

Background: The Exemplary Execution of a Pilot Judgment

The act of parliament that is at the center of the controversy was adopted to the enforce the pilot judgment of the European Court of Human Rights (ECtHR) in Varga and others v. Hungary (10 March 2015). In its judgment, the Court noted that „the Government did not dispute the facts as submitted by the applicants concerning the actual dimension and occupancy of the cells in which they were held during their detentions.” (para. 79). It further noted that „in some cells of these applicants, the lavatory was separated from the living area only by a curtain, the living quarters were infested with insects and had no adequate ventilation or sleeping facilities; and detainees had very limited access to the shower and could spend little time away from their cells. The Government did not refute either the allegations made by the applicants on these points or the findings of the various bodies which had visited the detention facilities where the applicants were detained.” (para. 90).

The ECtHR was sufficiently concerned about the state of detention – and the case load this generated – that when issuing a pilot judgment, the Court did not adjourn the examination of similar pending cases: “[r]ather, the Court finds that continuing to process all conditions of detention cases in the usual manner will remind the respondent State on a regular basis of its obligation under the Convention and in particular resulting from this judgment.” (para. 116, emphasis added)

One of the applicants in the case was represented by the Hungarian Helsinki Committee, a well-recognized human rights watchdog organization. The Helsinki Committee remained closely involved with the implementation, inter alia, using formal follow-up opportunities in the execution process on the European level. In the execution phase the pilot judgment in Varga and others was handled together with István Gábor Kovács group of cases.

The real victory in the case happened when the Hungarian government complied with the pilot judgment: in addition to expanding the use of house arrest and ‘reintegration custody’ (monitoring at home) on 25 October 2016 the Hungarian Parliament passed Act No. CX of 2016 which entered into force on 1 January 2017 to put in place a new preventive and compensatory system. It reflects the scale of overcrowding in prisons that according to the data available in the Committee of Ministers’ execution database in half a year over 2.000 requests were filed for the preventive remedy and over 5.000 for compensation. Thereupon HUF 153.510.900 (approx. EUR 497.040) was paid in compensation under the new law. Once the Committee of Ministers certified the effectiveness of the compensation mechanism, the ECtHR stopped accepting stock standard overcrowding complaints (see Domján v. Hungary, decision of November 14, 2017 (inadmissible).

The execution of the pilot judgment on prison overcrowding was a strong card up the sleeves of the Hungarian government when it came under scrutiny for the state of the rule of law in Hungary. The focus is usually on Baka v. Hungary (Judgment of June 23, 2016 [GC]), and the refusal of the government to adopt general measures that would counter the chilling effect of the government’s prior actions on Hungarian judges to criticise in public the reform of the Hungarian judiciary. By contrast, the Hungarian government’s stellar performance with executing Varga and Others was well documented within the Council of Europe for even the harshest European critics.

But now, it is the compensation system for inhuman and degrading detention conditions that has recently come under attack from the highest levels of the Hungarian government.

The New Year Brings a New Resolution

On 9 January 2020 Prime Minister Orban himself noted the impossible situation that results from the Hungarian’ government having to pay millions to convicted criminals at an international press conference due to the judgment of the Court of Justice of the EU (sic). The press conference was mostly covered in the press on account of PM Orbán’s criticism of a Hungarian court’s judgment ordering compensation to Roma victims of school segregation; the image of prisoners not worthy of taxpayer support was added almost as a by-the-by. In the coming days several senior civil servants made comments about the „prison business.” On 15 January 2020 the secretary of state for the Prime Minister’s Cabinet added that the Government plans to investigate in the European Parliament and Council of Europe whether detainees should be entitled to compensation at all. This statement may have sounded reassuring to some European political actors (although it is unclear what the European Parliament may have to do with the enforcement of ECtHR judgments), even though it openly calls for questioning the wisdom expressed in the judgments of the ECtHR in defense of Convention rights.

Then on Friday, 17 January 2020, PM Orban said in his weekly radio interview to a friendly journalist on Hungarian state radio: "’a group of clever, well-known lawyers’ realised that the European regulations about torture are so loose and absurd that with reference to them ‘one can run a lucrative business’." He added that "he expects ‘these fair lawyers’ to turn to the European Court, and based on his experience of European judges, they also believe that it is a genuine problem that ‘prison cells are not sunny enough’. However, it is still better to highlight the absurdity of a rule than ‘to fork out like a fool,’ he said." 

PM Orbán’s comments in his radio interview were primarily triggered by the resolution of the European Parliament (2020/2513(RSP)) passed the day before, finding that „the reports and statements by the Commission and international bodies, such as the UN, OSCE and the Council of Europe, indicate that the situation in both Poland and Hungary has deteriorated since the triggering of Article 7(1) TEU” (i.e. the EU’s rule of law preventive mechanism to safeguard the rule of law against a clear risk of a serious breach). In particular, PM Orbán attributed the formal condemnation to the betrayal of the European People’s Party and the operation of the Soros network, noting that “the world’s number one oligarch ‘controls political activities via a mafia-like network and exerts influence on European politics’.”

As is well-familiar, the ‘Soros network’ is a shorthand that includes human rights watchdogs that represent clients before the ECtHR. To give a sense of the atmosphere in the wake of the PM’s remarks, on Sunday at a memorial for victims of forced labor a retired Calvinist army pastor claimed that the Helsinki Committee had smuggled cockroaches into Hungarian prison in match boxes so that it could provide evidence of deplorable prison conditions. In its response denying the smuggling operation the Helsinki Committee reminded that the army pastor is known for blessing the flag of the Hungarian Guard, an extreme right wing paramilitary organisation. The memorial for the victims of forced labor was also attended by another secretary of state (this time for the Ministry of Human Resources), adding weight to the august gathering.

What is Next?

The Hungarian government’s suspension of the statutory remedy provided by courts for inhuman and degrading treatment in detention violates the most basic guarantees of the rule of law.

The likelihood of success of a challenge against a Government resolution before the Hungarian Constitutional Court is slim not only because the Constitutional Court is packed, but also because the avenues of access to the Court against a Government resolution are limited against such a measure. Without a judicial decision in a concrete case, a constitutional complain may be submitted against a legal norm in abstract terms as an exception (Article 26(2) of the Act on the Constitutional Court). In practice, the examination of such exceptional constitutional complains rarely ever reaches the merits according to the inhouse statistics of the Constitutional Court.

In January 2020, the Hungarian government did more than suspend the execution of a pilot judgment: it suspended the effective domestic remedy for inhuman and degrading treatment in Hungarian detention facilities. This move is likely to drive detainees to the ECtHR - as before Varga and Others. If the Hungarian Government’s statistics are accurate, the number of potential cases are in the thousands.

It is particularly alarming that the Hungarian Government’s blatant defiance of the Court, the rule of law and the European human rights regime more generally follows a familiar recipe and happens at the expense of detainees’ rights -- à la Hirst. To add insult to injury, it is estimated that up to a third of Hungarian detainees are in pre-trial detention, and are not serving a sentence imposed by a final judgment.

These applicants have a strong case not only on account of the prison overcrowding and the prevailing inhuman and degrading conditions in Hungarian detention facilities, but also because the ECtHR frowns upon the systemic non-enforcement of judicial decisions (Burdov (no. 2.) v Russia, judgment of 15 January 2009). When the systemic non-enforcement of judicial decisions is based on a discretionary decision relaying open political considerations, the applicant’s case is all the stronger, as it violation of a basic tenet of the European public order, the rule of law. In the words of the ECtHR (in Aliyev v. Azerbaijan, Judgment of 10 September 2018, para. 225):

“the Convention is a constitutional instrument of European public order, the States Parties are required, in that context, to ensure a level of scrutiny of Convention compliance which, at the very least, preserves the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle. This is all the more so since the Statute of the Council of Europe, an organisation of which each of the States Parties to the Convention is a Member, refers in two places to the rule of law: first in the Preamble, where the signatory Governments affirm their devotion to this principle, and secondly in Article 3 which provides that “every Member of the Council of Europe must accept the principle of the rule of law .” 

Thursday 9 January 2020

New ECHR Readings

A very good new year for all the readers of the ECHR blog! please find below the newest selection of readings related to the ECHR and the Court:

* Jeffrey Kahn, ‘The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St Petersburg’, European Journal of International Law, vol. 30, issue 3 (2019), pp. 933-959:

'Russia eagerly ratified the European Convention on Human Rights (ECHR) in 1998. Twenty years later, the chair of its Constitutional Court now expresses resentment at the subordination of Russian sovereignty. A new law expands his Court’s jurisdiction to deny effect to judgments of the European Court of Human Rights, an unprecedented power that has already been used twice. This article analyses this law and its application in its first two years. Both the claim of ‘subordination’ and the Russian response to it, in law and practice, rest on weak legal ground. But Russia’s action also raises deeper theoretical and practical questions for the ECHR as a ‘living instrument’ subject to the ‘evolutive’ interpretations of the Strasbourg Court. If other member states mimic Russia’s response to these issues, a European human rights system premised on the final interpretive authority of an international court could come to its end.'

* A. Blankenagel, ‘The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: A Reply to Jeffrey Kahn’, European Journal of International Law, vol. 30, issue 3 (2019), pp. 961-969. 

* Christine Bicknell, ‘Uncertain Certainty?: Making Sense of the European Court of Human Rights’ Standard of Proof’, International Human Rights Law Review, vol. 8, issue 2 (2019), pp. 155-187:

'The European Court of Human Rights (ECtHR) declares a single standard of proof (‘SoP’): proof beyond reasonable doubt (‘brd’). Yet the accuracy of this claim and the threshold’s appropriateness have both been challenged. This article uniquely considers and clarifies the Court’s interpretation and application of its SoP. Demonstrating SoP is capable of both broad and narrow interpretations, it shows the Court interprets SoP only narrowly. This understanding confirms brd as the applicable standard, whose use is then considered through detailed examination of the case law. The analysis shows that although the Court’s conception and approach to brd necessarily accommodate some doubt, violations are found with a consistently high level of certainty. There is however, a striking inconsistency in references made to the Rules of Court. Moreover, the Rules do not fully capture the Court’s approach. Addressing this, as the article proposes, would strengthen both the consistency and legitimacy of relevant decisions.'

* Christophe Deprez, ‘The Admissibility of Multiple Human Rights Complaints: Strasbourg and Geneva Compared’, Human Rights Law Review, vol. 19, issue 3 (2019), pp. 517-536:

'This article seeks to provide a comparative and up-to-date overview of the applicable rules and relevant practice of the European Court of Human Rights and of the United Nations Human Rights Committee on forum duplication in international human rights litigation. While specific inadmissibility clauses have been included in both the European Convention on Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights with a view to preventing multiple human rights petitions in relation to the same matter, their respective scopes differ. Moreover, the applicable normative framework has led to important—and diverging—judicial developments in Strasbourg and in Geneva, which may be of great significance in human rights practice and therefore deserve to be thoroughly addressed.'

* Christos Giannopoulos, ‘The Reception by Domestic Courts of the Res Interpretata Effect of Jurisprudence of the European Court of Human Rights’, Human Rights Law Review, vol. 19, issue 3 (2019), pp. 537-559:

'This article focuses on two subjects: the attitude of national courts towards the jurisprudence of the European Court of Human Rights and their role in the achievement of effective domestic implementation of the European Convention on Human Rights. The first topic outlines a typology of the positions adopted, which is proposed in order to underline the national strategies regarding the reception of the res interpretata effect of the Court’s judgments. The second provides a critical analysis of the mirror metaphor, which is proposed to resolve some unproven and untested assumptions that domestic courts act as puppets and cannot go beyond Convention standards without violating the Court’s authentic interpretations. In both cases, examples are given of domestic courts’ practices in order to clarify that the judicial interaction between domestic courts and the European Court of Human Rights is not always harmonious.'

* Bríd Ní Ghráinne and Aisling McMahon, ‘Access to Abortion in Cases of Fatal Foetal Abnormality: A New Direction for the European Court of Human Rights?’, Human Rights Law Review, vol. 19, issue 3 (2019), pp. 561-584: 

'In contrast to the United Nations Human Rights Committee, the European Court of Human Rights (ECtHR) has not yet found that a prohibition of abortion in cases of fatal foetal abnormality violates the prohibition of torture or inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. We argue that the ECtHR is on the verge of aligning itself with the Committee because, first, recent ECtHR jurisprudence is broadening its interpretation of rights within the abortion context; second, the ECtHR frequently uses international law as an interpretative tool; and, third, moving in the direction of the Committee would not be as controversial as it may have been in the past. More broadly, we view the proliferation of international and regional human rights' treaty regimes as a positive aspect of international human rights law and demonstrate how a body established to adjudicate on human rights disputes can, with some ingenuity, broaden its approach on sensitive topics by engaging with views of other human rights courts and treaty monitoring bodies.'

* Anne Lise Kjær, ‘Translation of Judgments of the European Court of Human Rights into Non-official Languages: The Politics and Practice of European Multilingualism’, in: Anne Lise Kjær and Joanna Lam (eds.): Language and Legal Interpretation in International Law (Oxford University Press, forthcoming): 

'The paper examines the role that translation of judgments of the European Court of Human Rights (ECHR) has played in the dialogue between the Member States of the Council of Europe and the Court over time. The judgments of the ECHR are produced in the two official languages, English and French, only. Translation into other languages was never an issue in the discussions leading to the adoption of the European Convention on Human Rights, and not until the beginning of the reform process at the turn of the century was translation of ECHR judgments into non-official languages put on the agenda. It was introduced into the reform discourse under the heading of Member States’ implementation of the convention and their knowledge and understanding of the Court’s case law. The paper traces the development of translation arguments in the reform discourse and discusses the possible reasons why translation into languages other than English and French was not an issue until the Court faced challenges from the Member States in the early 2000s. It is argued that the choice of language policy and considerations regarding translation into the national languages of the Member States indicate the institutional balance that exists at any given time in the interface between the national and European level of Human Rights law.'

* Pan Mohamad Faiz (Center for Research and Case Analysis, the Constitutional Court of Indonesia), ‘The Dissolution of Political Parties in Indonesia: Lessons Learned from the European Court of Human Rights’, Journal of Legal, Ethical and Regulatory Issues, Volume 22, Issue 4 (2019) pp. 1-10:

'This article aims to examine several important decisions related to the dissolution of political parties decided by the international human rights courts. It aims to conclude that there are general guidelines on political party dissolution established by the European Court of Human Rights (ECtHR) and uses sources obtained from relevant case studies to support it. Not only does the research highlight that the ECtHR provides requirements that must be fulfilled by the government to justify dissolution, it also dictates the procedural requirements for the restriction of political parties. These guidelines are necessary in a democratic society, regardless of its limited ‘margin of appreciation’. Although Indonesia is not a state party to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the interpretation and legal considerations made by ECtHR could be applied by the Constitutional Court in deciding the outcome of political party dissolution cases in Indonesia. Thus, ensuring that the Constitutional Court’s future jurisprudence complies with the international standards of human rights.'