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Wednesday, 9 December 2020

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, ┼×ahin 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!