The Convention and the ECHR Blog in 2020

Dear readers of the ECHR Blog, 

2020 marked the 70th anniversary of the European Convention on Human Rights. Despite its age, the Convention system has never been more attractive. The scholarly work on the Convention continues to rise, with new books, articles, blogs, podcasts and knowledge clips, to name a few. 2020 also witnessed the birth of the first journal devoted exclusively to the Convention system, the European Convention on Human Rights Law Review. The Court too has become more inclusive and youthful over time. In 2020, the Court appointed the first female registrar and the youngest president of the Court.

 

2020 was also the year of an unprecedented attack on human life and human rights as a result of Covid-19. The death toll of more than 1.6 million from Covid-19, the disproportionate effects of the pandemic on vulnerable groups (e.g. rise of domestic violence) and the record number of derogations from and restrictions to the ECHR are only some of the aspects with which the Court will have to grapple in the coming year(s). These challenges will test the ability of the Convention system to secure human rights not just in times of peace but also of public emergencies. 

Over this year, we have published 60 posts in the form of analysis or news on the case-law of the Court and other developments relevant to the Convention system, such as derogations, or the renewed negotiations around the long-waited EU accession to the ECHR. As always, we have also continued to provide updates on new academic publications and events related to the Convention and the Court. And of course, the blog’s editorial team has doubled in numbers! 

In 2021, the ECHR Blog will continue to provide the platform for discussion of current and future challenges of the Convention system and to keep you abreast of such developments. We thank, as always our readers for your input and interest - it’s for you that we exist and hope to continue for many years to come. We welcome your submissions and feedback. 

Best wishes for a more prosperous and healthy New Year! 

Antoine Buyse and Kushtrim Istrefi 

 

New Book on the European Court of Human Rights by Judge Nussberger

Earlier this year, Angelika Nussberger published a book entitled The European Court of Human Rights with Oxford University Press. Nussberger is a former judge and vice-president of the European Court of Human Rights and an academic based at the University of Cologne. 

The book provides an in-depth analysis of, among others, the creation, organisation, adjudication by and procedures of the Court. It is an important book for anyone interested in the work of the Court and the Convention system. At the same time, the book is equally relevant for international law scholars interested in the functioning of the Court as an international adjudicatory body.  Here is the abstract of the book:

In this volume Professor Nussberger explores the Court's uniqueness as an international adjudicatory body in the light of its history, structure, and procedure, as well as its key doctrines and case law. This book also shows the role played by the Court in the development of modern international law and human rights law. Tracing the history of the Court from its political context in the 1940s to the present day, Nussberger engages with pressing questions about its origins and internal workings. What was the best model for such an international organization? How should it evolve within more and more diverse legal cultures? How does a case move among different decision-making bodies? These questions help frame the six parts of the book, whilst the final section reflects on the past successes and failures of the Court, shedding light on possible future directions.

 

ECHR Articles in December Issue of NQHR

The newest (December) issue of our SIM-based Netherlands Quarterly of Human Rights (NQHR, volume 38, issue 4) has just been published online. Apart from a column on the #BlackLivesMatter protests in the US and the SIM Peter Baehr lecture on digital human rights, all its substantive articles relate to the European Convention on Human Rights:

* Claire Loven, '“Verticalised” cases before the European Court of Human Rights unravelled: An analysis of their characteristics and the Court’s approach to them':

Based on Article 34 European Convention on Human Rights, individual applications must be directed against one of the Convention States. Originally ‘horizontal’ cases therefore must be ‘verticalised’ in order to be admissible. This means that a private actor who had first brought a procedure against another private actor before the domestic courts, must complain about State (in)action in his application to the European Court of Human Rights. Recently, some scholars and judges have raised procedural issues that may arise in these cases, but generally, these ‘verticalised’ cases have remained underexplored. To unravel verticalised cases before the ECtHR and to better understand procedural issues that may arise from them, this article provides a deeper understanding of the origins of verticalised cases and the Court’s approach to them. It is explained that verticalised cases before the ECtHR can be very different in nature. These differences are rooted in the different types of horizontal conflicts that may arise on the domestic level, the different relations between private actors they may concern, and the different Convention rights that may be at stake. The wide variety of verticalized cases is also reflected in the Court’s approach to them, as is the second main topic that the present article explores.

* Emre Turkut & Sabina Garahan, 'The ‘reasonable suspicion’ test of Turkey’s post-coup emergency rule under the European Convention on Human Rights':

'Since the 15 July 2016 failed coup, Turkey has seen the mass arrests and detention of hundreds of thousands of individuals; among them are judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians who have been deprived of their liberty on an array of terrorism-related charges. While this has raised numerous human rights issues, this article focuses on those relating to pre-trial restrictions imposed on the right to liberty and security of individuals during the post-coup state of emergency. Building on the theory and use of the reasonableness concept in the field of pre-trial detention through a particular focus on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (ECHR or the Convention), the article analyses the role of the European Court of Human Rights (the Court or the ECtHR) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala. Against the background of pre-existing Convention standards on pre-trial reasonable suspicion in states of emergency, it finds that the ECtHR has adopted a stronger supervisory stance regarding the compatibility of Turkish post-coup detention practices than the more hesitant approach shown in the prior derogation context of Northern Ireland. While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s arbitrary detention practices during the state of emergency, the article argues that there is further scope for the Court to strengthen its protection in this respect. Notably, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.'

* Marcin Szwed, 'The notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the European Convention on Human Rights':

'This article presents a critical analysis of the case-law of the ECtHR with regards to the interpretation of the notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the Convention. According to the Court, only a person who has been reliably diagnosed with a mental disorder and who poses a danger to himself or others can be legally detained as ‘a person of unsound mind’. However, the notion of ‘unsoundness of mind’ is not limited to such mental disorders which are treatable or which deprive the persons affected of their ability to self-control and so in the past the Court applied the said provision of the Convention to, among others, persons diagnosed with personality disorders or paedophilia who commited crimes acting with full criminal responsibility. The article argues that such a definition of the notion ‘a person of unsound mind’ is not sufficiently clear, what is dangerous from the perspective of protection of personal liberty. For this reason, the article proposes to limit the scope of the analysed notion to persons affected by such mental disorders that exclude or significantly reduce their ability to make informed decisions about their own health and/or to control their own behaviour and recognise the meaning of their own actions. Only then, provided that other criteria developed in the Court’s case law, such as dangerousness for self or others and lack of less restrictive alternatives, have been satisfied, detention of person with mental disorder may be consistent with the object and purpose of the Convention.'

Enjoy reading!

ECHR Decides the First Case Regarding Covid-19 Measures

The pandemic Covid-19 has affected the entire globe. Yet, the States have had different responses to this public health emergency. Measures vary from full to partial to ‘intelligent’ to no lockdown. Each response has been guided by different considerations, some paying more attention to public health, others to economy. From a human rights perspective, some States resorted to restricting human rights while others derogated from them.

People have complained about these various Covid-19 measures for being discriminatory, harsh or lenient, effective or ineffective and thus blamed governments and other institutions for not doing their job properly. Such cases are already reaching national and regional courts.

On 3 December 2020, a three judge Committee of the European Court of Human Rights decided (decision in French is here, and press release in English is here) in the case of Le Mailloux v. France on the adequacy of French Covid-19 measures. The applicant, a French national, invoking Articles 2, 3, 8 and 10 of the Convention complained of the "failure by the State to fulfil its positive obligations to protect the lives and physical integrity of persons under its jurisdiction. He complained in particular of restrictions on access to diagnostic tests, preventive measures and specific types of treatment, and interference in the private lives of individuals who were dying of the virus on their own".

The Court found that the applicant had not showed that he personally had been denied assistance or care in the context of the impugned general health measures. The Court ruled that if he were to have been directly affected by such measures, he should first contest the compatibility of such refusal with the Convention in the domestic courts.

In light of the above, the Court decided that the applicant complained in abstracto about the Covid-19 measures taken by the French Government. In particular, he had failed "to provide any information about his own condition and had failed to explain how the alleged shortcomings of the national authorities might have affected his health and private life". 

In these circumstances, the application was considered to amount "to an actio popularis and the applicant could not be regarded as a victim, within the meaning of Article 34 of the Convention, of the alleged violations".

This is the first decision of the ECtHR on Covid-19 measures and certainly will not be the last of cases to question the States’ responses to Covid-19.