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.'