Friday 18 December 2020

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 


Thursday 17 December 2020

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.

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, 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!

Thursday 3 December 2020

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. 

Thursday 26 November 2020

ECHR Law Review Issue 2 is Now Available Online

The European Convention on Human Rights Law Review (ECHR Law Review) is a scholarly journal devoted exclusively to the Convention system. The second issue of the ECHR Law Review is now available online. It contains articles, book reviews, an interview and editorial note on such topical issues as the current pandemic, Court's authority and the rule of law backsliding, as well as more foundational topics concerning the execution of judgments, the argumentation before and review by the Court. Some articles are open access and others can be downloaded for free by following the instructions here

Contributors to this issue include the current president, a former judge and a former deputy registrar of the Strasbourg Court, and eminent and emerging scholars working on the Convention system. Here is the full list of contributions:

Authors: Vassilis P Tzevelekos and Kanstantsin Dzehtsiarou
Normal as Usual? Human Rights in Times of covid-19


Authors: Mikael Rask Madsen and Robert Spano
Author: Conall Mallory
Author: Janneke Gerards
Author: Elif Erken
The Participation of Non-Governmental Organisations and National Human Rights Institutions in the Execution of Judgments of the Strasbourg Court
Book Reviews

Author: Michael O’Boyle
Author: Dimitrios Kagiaros

Wednesday 25 November 2020

New Book on the European Court of Human Rights and Turkey's Kurdish Conflict

Dr Dilek Kurban, based at the Hertie School of Government in Berlin, has published the book Limits of Supranational Justice. The European Court of Human Rights and Turkey's Kurdish Conflict with Cambridge University Press. The monograph is a must read for any academic or legal practitioner at the Court and beyond to understand the relations between the European Court of Human Rights and Turkey on one of the most contentious issues. It is based on dr Kurban's PhD dissertation, defended at Maastricht University, and it won one of the Erasmus Research Prizes in the Netherlands, one of the most prestigious accolades for a PhD. This is the abstract:

'With its contextualized analysis of the European Court of Human Rights' (ECtHR) engagement in Turkey's Kurdish conflict since the early 1990s, Limits of Supranational Justice makes a much-needed contribution to scholarships on supranational courts and legal mobilization. Based on a socio-legal account of the efforts of Kurdish lawyers in mobilizing the ECtHR on behalf of abducted, executed, tortured and displaced civilians under emergency rule, and a doctrinal legal analysis of the ECtHR's jurisprudence in these cases, this book powerfully demonstrates the Strasbourg court's failure to end gross violations in the Kurdish region. It brings together legal, political, sociological and historical narratives, and highlights the factors enabling the perpetuation of state violence and political repression against the Kurds. The effectiveness of supranational courts can best be assessed in hard cases such as Turkey, and this book demonstrates the need for a reappraisal of current academic and jurisprudential approaches to authoritarian regimes.'

Tuesday 24 November 2020

New Book on 'Hard Power' and the ECHR

Dr Peter Kempees has published the new book “Hard Power” and the European Convention on Human Rights with Brill Publishers. I had the pleasure of being on the reading committee of the dissertation of dr Kempees on which this book is based. It was successfully defended at Leiden University in 2019. Older readers may know Peter Kempees, working at the registry of the European Court, as the editor of the systematic guide to the case-law of the European Court, published in the 1990s and at the time one of the key works of reference. This is the abstract of his new monograph:

'The European Convention on Human Rights is now crucial to decisions to be taken by the military and their political leaders in ‘hard power’ situations – that is, classical international and non-international armed conflict, belligerent occupation, peacekeeping and peace-enforcing and anti-terrorism and anti-piracy operations, but also hybrid warfare, cyber-attack and targeted assassination. Guidance is needed, therefore, on how Convention law relates to these decisions. 

That guidance is precisely what this book aims to offer. It focuses primarily on States’ accountability under the Convention, but also shows that human rights law, used creatively, can actually help States achieve their objectives.'

Friday 20 November 2020

Summer School “ECHR in Times of Crises”

TU Dresden and Leipzig University are organising the 2nd International Summer School "Human Rights in Theory and Practice" from September 5th to 10th, 2021 in Dresden.  The Summer School will focus on the topic of “The European Convention on Human Rights in Times of Crises” and will explore challenges and opportunities for the European Human Rights System arising out of situations of crisis. 

Themes such as emergency situations, populism, migration, and the role of economic, social and cultural rights in the context of crisis will be explored from an interdisciplinary perspective.

Speakers of the summer school include the Strasbourg Court Judge Anja Seibert-Fohr and other established scholars and practitioners working on the Convention system.

The Summer School is designed for advanced students of law, political science, international relations and similar fields. Prior knowledge about the European Human Rights System may be beneficial but is not required. The language of the Summer School will be English.

The programme is available here and the registration link is here. For more information you can visit the website of the summer school.


Wednesday 18 November 2020

Guest Post: Admission of Evidence Obtained Through Ill-treatment of a Third Party by Private Individuals: the Case of Ćwik v. Poland

By Matteo Mastracci, PhD researcher at Koç University

On 5 November 2020, the European Court of Human Rights issued its judgment in the case of Ćwik v. Poland. The question, which until now had never been addressed by the Court, was whether the exclusionary rule disqualifying evidence obtained through ill-treatment (also known as ‘torture evidence’) could be applied even when inflicted by private individuals, in the absence of involvement or acquiescence of state officials. The Court, in a pioneering ruling, found a violation of Article 6 of the Convention by confirming that the use in criminal proceedings of evidence obtained in breach of Article 3 renders the proceedings as a whole automatically unfair. Indeed, the Court ruled that admission into the trial of torture evidence is always excluded, irrespective of its classification.

The facts of the case

In 2008, the applicant, a Polish national, was sentenced to 12 years in prison for international drug trafficking. His conviction by Polish authorities was based on various pieces of evidence including a transcript of utterances recorded on an audio cassette secured by the police in the course of a search and seizure operation.

The content of the audio-recorded material, in particular, consisted of a third-party statement resulting from a criminal episode of kidnapping and torture inflicted by private individuals, members of a criminal gang part of “settling of accounts between gangsters”.

In 2010, the applicant lodged an application against Poland with the European Court of Human Rights alleging a violation of his right to a fair trial under Article 6 § 1 of the Convention. He contended that national courts should not have admitted into evidence the transcript of a recorded conversation obtained through ill-treatment of a third party inflicted by members of a criminal gang. A decade later the Court ruled on this rather unique case.

The Court’s judgment

The State’s positive obligations under Article 3

On a preliminary note, the Court recalled the importance of the principles developed under Article 3 of the Convention for its assessment under Article 6 in this case. The absolute and non-derogatory nature of the prohibition of torture and inhuman or degrading treatment or punishment entails the State’s positive obligation to guarantee to all those who fall within its jurisdiction the protection of the right referred to in Article 3. This specific obligation, on the one hand, cannot be limited solely to cases of ill-treatment inflicted by state actors (M.C. v. Bulgaria, § 151), but on the other hand, it may have a different scope depending on whether the violence is perpetrated by private individuals or state agents (Beganović v. Croatia, § 69).

In any event, as the extensive case-law of the Court on private contexts has shown, the prohibition of torture and inhuman or degrading treatment or punishment protects every person regardless of the source of violence that has reached a minimum level of severity. Since Article 3 of the Convention is an absolute right, and thus it cannot be weighed against other rights (see the Grand Chamber’s finding in Gäfgen v. Germany, § 176), the right prevails, among other things, over the securing of a criminal conviction. Finally, the Court recalled the General Comment no. 20 of the Human Rights Committee on Article 7 of the International Covenant on Civil and Political Rights (ICCPR) establishing the State’s duty to afford everyone protection through legislative and other measures against the acts prohibited by Article 7, which includes people acting in a private capacity.

The unfairness of the proceeding as a whole under Article 6

Having clarified that Article 6 ECHR does not prescribe rules on the admissibility of evidence which are entirely left to the domestic legislators, the Court stepped into the core of the case. The main question was whether the proceeding as a whole, including how the evidence was obtained, was fair. For evaluating the fairness of the proceedings, several elements might be examined, including the decisiveness of the evidence on the outcome of the case. Be that as it may, the evidence obtained in violation of Article 3 (one of the cores and absolute rights under the Convention) would, nonetheless, raise serious issues even if its admission was not decisive for the outcome of the proceeding.

By recalling the case of Othman (Abu Qatada) v. the United Kingdom, where it has been ruled that “no legal system based upon the rule of law” can permit the admission of evidence achieved “by such barbaric practice as torture”, the Court took a clear stand against the admission of torture evidence for both legal and moral reasons. The Court, then, reiterated its settled case-law according to which the admission of statements obtained through ill-treatment by public officials in breach of Article 3 renders the proceedings as a whole unfair regardless of the decisiveness of the evidence in securing the conviction of the accused. Furthermore, the Court reaffirmed that those principles are equally applicable in the case of third party victims.

Torture evidence inflicted by private individuals

The real novelty of the legal question in the case at hand was whether the exclusionary rule for the admission in national court proceedings of the so-called tortured evidence was equally applicable in the case of ill-treatment inflicted to third party victims by private individuals. For the very first time in a Strasbourg case, neither the defendant nor the state officials were directly involved in criminal misconduct. After reiterating that the evidence admitted to trial leaves no doubt that the treatment falls within the scope of Article 3 (indeed, the national authorities themselves classified the fact as “torture” or “assault”), the Court confirmed the existence of the State’s positive obligation in this respect.

Because the evidence obtained in violation of Article 3, regardless of its probative value and its decisiveness in securing the conviction of the accused, renders the proceeding as a whole automatically unfair, the Court applied this general principle to the case. Indeed, the Court found, by five votes to two, a violation of Article 6 § 1 of the Convention since the exclusionary rule disqualifying evidence contra Article 3 was equally applicable to the admission of torture evidence where private individuals had inflicted ill-treatment, irrespective of its classification.

Joint dissenting opinion of judges Wojtyczek and Pejchal

As an introductory remark, the two dissenting judges argued that in their understanding of many external legal sources it becomes clear that ill-treatment committed by a public official or other person acting in an official capacity is fundamentally different from that of private individuals. They noted that, inter alia, the wording of Article 1 § 1 of the Convention against Torture, was a deliberate choice of the drafters aware of the diversity between the two situations: “a breach of the law is always much more serious when committed by public officials because it erodes the State and corrodes the rule of law”. Also, they challenged the Court’s underreckoning of both the principles of free legislation on evidence in judicial proceedings and free assessment of evidence inherent to the national authorities’ domain. The latter they considered to be part of the modern criminal systems of continental Europe.

In any event, the sharpest criticism introduced by judges Wojtyczek and Pejchal was directed against the use by the Court of the analogy discourse in its legal reasoning. Starting from the assumption that analogy requires a thorough explanation of the reasons why a similarity can be drawn between different situations, they concluded that the Court failed to provide plausible arguments explaining the similarity between ill-treatment by state officials or private individuals. Conversely, they claimed that similarity could not be traced for, at least, three arguments: the protection of a trial’s integrity, the safeguarding of the rule of law, and the consequences stemming from the applicant’s right to remain silent and not to incriminate himself. Thus, the dissenting judges came to the conclusion that the Court’s reasoning was somewhat based upon an abusive reference to the analogy where judicial fiat ended by replacing the rule of law.


The exclusion of evidence in international human rights law, as noted by Zeegers, has often been based on the use of many vague standards such as ‘fairness’, ‘fundamental principles of justice’, or ‘shocks to the conscience of the court’. In this respect, Currie spoke of an area that is still largely grey. At the same time, the Court’s historical approach on the admissibility of evidence has been very cautious and reluctant to interfere with the prerogatives left to the domestic authorities in purely procedural matters. Indeed, from the very first ruling, Schenk v. Switzerland, the Court has developed an argumentative methodology that has remained substantially unchanged to date. Article 6 ECHR does not establish any rules on the admissibility of evidence as the matter is essentially dependent on domestic legislation. Nonetheless, the Court is always called to examine whether evidence has been presented in such a manner as to guarantee a fair trial. Thus, the way in which evidence is obtained under domestic rules and procedures may, in some exceptional circumstances, render the proceedings as a whole unfair, thereby allowing the Court to intervene successfully and holding a national court judgment contrary to the ECHR.

More crucially, then, the Court while reaffirming the ipso facto unreliability of evidence obtained in violation of Article 3 ECHR (as in Othman v. the United Kingdom), has extended the scope of application of the exclusionary rule. In doing so, contrary to what was argued by the dissenting judges, the Court does not seem to have employed a mere analogy tool but rather a teleological interpretation of the rights in the Convention. The ‘absolute’ prohibition of ill-treatment renders the proceedings as a whole automatically unfair when the evidence gathered is contrary to Article 3 of the Convention. Furthermore, this occurs regardless of whether such ill-treatment is inflicted by a public official or by a private individual. Torture evidence is, thus, a priori excluded not only to protect the integrity of the process but, also and above all, to preserve the rule of law itself as ‘no legal system based upon the rule of law can countenance of evidence obtained by such a barbaric practice as torture’ (Othman v. the United Kingdom, § 264).

Tuesday 17 November 2020

New Book on Law, Democracy and the ECtHR

Rory O'Connell (Ulster University) has published a new monograph entitled Law, Democracy and the European Court of Human Rights with Cambridge University Press. O'Connell is an esteemed colleague over at the Transitional Justice Institute in Belfast - where I had the pleasure of being a guest researcher in the past - is an expert on the intersection of democracy and the ECHR. This is the book's abstract:

'Law, Democracy and the European Court of Human Rights examines the political rights jurisprudence of the European Court of Human Rights. It discusses how the Court supports a liberal representative and substantive model of democracy, and outlines the potential for the Court to interpret the Convention so as to support more deliberative, participatory and inclusive democratic practices. The book commences with an overview of different theories of democracy and then discusses the origins of the Council of Europe and the Convention and presents the basic principles on the interpretation and application of the Convention. Subsequent chapters explore issues around free expression, free assembly and association, the scope of the electoral rights, the right to vote, the right to run for election and issues about electoral systems. Issues discussed include rights relating to referendums, voting rights for prisoners and non-nationals, trade union rights and freedom of information.
  • Discusses the European Convention on Human Rights in the context of democratic theories and will appeal to those interested not just in the black letter of the European Convention law but also wider theoretical debates
  • Features a detailed presentation of case law on political and electoral rights that will provide readers with an in-depth understanding of multiple issues relating to the political process as seen through the lens of the European Convention on Human Rights
  • Discusses the potential for more deliberative, participatory and inclusive models of democracy'

Thursday 12 November 2020

New Book on Positive Duties to Mobilise Criminal Law under the ECHR

Laurens Lavrysen (Ghent University) and Natasa Mavronicola (Birmingham University) have co-edited the new book Coercive Human Rights.Positive Duties to Mobilise the Criminal Law under the ECHR with Hart Publishing. This is the abstract:

'Traditionally, human rights have protected those facing the sharp edge of the criminal justice system. But over time human rights law has become increasingly infused with duties to mobilise criminal law towards protection and redress for violation of rights. These developments give rise to a whole host of questions concerning the precise parameters of coercive human rights, the rationale(s) that underpin them, and their effects and implications for victims, perpetrators, domestic legal systems, and for the theory and practice of human rights and criminal justice. This collection addresses these questions with a focus on the rich jurisprudence of the European Court of Human Rights (ECtHR). 

The collection explores four interlocking themes surrounding the issue of coercive human rights: 

First, the key threads in the doctrine of the ECtHR on duties to mobilise the criminal law as a means of delivering human rights protection.

Secondly, the factors that contribute to a readiness to demand coercive measures, including discrimination and vulnerability, and other key justificatory reasoning shaping the development of coercive human rights. 

Thirdly, the most pressing challenges for the ECtHR's coercive duties doctrine, including:

- how it relates to theories and rationales of criminalisation and criminal punishment; 
- its implications for the fundamental tenets of human rights law itself;
- its relationship to transitional justice objectives; and 
- how (far) it coheres with the imperative of effective protection for persons in precarious or vulnerable situations.

Fourthly, the (prospective) evolution of the coercive human rights doctrine and its application within national jurisdictions.'

Wednesday 11 November 2020

EYHR Call for Contributions: Human Rights in Times of a Pandemic

The European Yearbook on Human Rights (EYHR) has issued a call for contributions for 2021 with a special focus on Human Rights in Times of a Pandemic. Below is the call for contributions as presented by the EYHR:

Large parts of 2020 have been marked by an unprecedented global health crisis with economic, social and humanitarian dimensions that resulted in a severe human rights impact. COVID-19 exposed the weaknesses of public health care systems and the access thereto, prevailing structural inequalities and the fragility of the rule of law in times of emergency. Hate speech, fake news, the targeting of vulnerable groups, nationalism and populism spread alongside the virus and pave the way for the adoption of repressive measures for purposes unrelated to the pandemic. Human Rights appeared as afterthoughts rather than as guiding principles in the political strategies responding to the global pandemic.

The 2021 edition is therefore dedicated to the impact the global pandemic had on human rights protection in Europe and related submissions are welcome. In particular, we encourage submissions on responses by the EU, the CoE and the OSCE to the pandemic from a human rights perspective.

Authors will be invited to submit full contributions based on an abstract (max 500 words) that should be send by 11 December 2020. Abstracts should be submitted with a short bio to The deadline for submitting the manuscript is end of March 2021.

The Yearbook is edited by representatives of the three major Austrian human rights research, training and teaching institutions – the European Training and Research Centre for Human Rights and Democracy of the University of Graz; the Austrian Human Rights Institute of the University of Salzburg and the Ludwig Boltzmann Institute of Human Rights, Vienna – and the Global Campus of Human Rights, Venice. It is published by Intersentia and all contributions are subject to a double-blind review process.

Thursday 5 November 2020

Shifting Centres of Gravity in Human Rights Protection Now in Paperback

It is my pleasure to announce that the book professor Oddný Mjöll Arnardóttir (University of Iceland) and myself (Utrecht University) co-edited a few years ago, Shifting Centres of Gravity in Human Rights Protection. RethinkingRelations between the ECHR, EU, and National Legal Orders, has now been published in paperback! It focuses on what we then dubbed the shifting gravities of the protection of human rights in the triangle: European Union, European Convention on Human Rights, and national jurisdictions. It includes contributions from a wide range of authors who are experts on one or several of the interlinkages in this human rights triangle. This is the abstract:

'The protection of human rights in Europe is currently at a crossroads. There are competing processes which push and pull the centre of gravity of this protection between the ECHR system in Strasbourg, the EU system in Luxemburg and Brussels, and the national protection of human rights.

This book brings together researchers from the fields of international human rights law, EU law and constitutional law to reflect on the tug-of-war over the positioning of the centre of gravity of human rights protection in Europe. It addresses both the position of the Convention system vis-à-vis the Contracting States, and its positioning with respect to fundamental rights protection in the European Union. The first part of the book focuses on interactions in this triangle from an institutional and constitutional point of view and reflects on how the key actors are trying to define their relationship with one another in a never-ending process. Having thus set the scene, the second part takes a critical look at the tools that have been developed at European level for navigating these complex relationships, in order to identify whether they are capable of responding effectively to the complexities of emerging realities in the triangular relationship between the EHCR, EU law and national law.'

Wednesday 4 November 2020

70 Years ECHR Today

Today, it is exactly 70 years ago that a small group of European states adopted, after relatively fast negotiations, a very special document that is now shortly known as the ECHR. In the photo, one can see the Ministers sitting together in the Palazzo Barberini in Rome for the formal meeting of adoption of the Convention. In the seven decades since, not only has Europe completely changed, so too has the number of state parties, the number of substantive rights, the exact process of supervision, the 'socialisation' of the Convention in domestic jurisdictions, and more generally the visibility of the ECHR. What has remained is the still very special idea that people should have their basic rights protected and should have an avenue to have violations redressed, if need be beyond the national level level, guarded by an international court that can issue binding judgments.

With a special meeting of the Committee of Ministers in Athens today (as Greece is currently chairing the Committee) and a number of academic and other events, including a big online conference at Leuven University, this special day is marked and shows the resilience of an ever-changing mechanism of human rights protection. Even in the light of backsliding of democracy. Even in the light over shrinking civic space. Even in the light of a quickly shifting geopolitical context, as the enduring uncertainty about the US selections also shows today. Far beyond the dozen of men sitting around that table in Rome, the Convention is now truly a living instrument, carried by countless women, men, children, stateless people, judges, lawyers, civil society organisations and countless others beyond the diplomats in 1950. 

As editors of the ECHR Blog, we wish the ECHR many more years of remaining a key bulwark of protection against human rights violations. Forward we go!

Tuesday 3 November 2020

Guest Post: ‘Hate Speech’ Jurisprudence of the ECtHR through a Qualitative and Quantitative Lens

By Jacob Mchangama, Director, Justitia, Denmark and Natalie Alkiviadou, Senior Research Fellow, Justitia, Denmark

The point at which free speech ends and hate speech begins has become a burning issue in an age of social media, where billions of people have access to share synchronous content on global fora. This has raised concerns over an epidemic of hate speech, with privately owned platforms looking to human rights law for inspiration and legitimisation of their own community standards and terms of service, which typically prohibit hate speech, although definitions vary widely. The concerns have also led both the European Union and European democracies to adopt several measures to counter this phenomenon. Examples include the EU’s Code of Conduct on Illegal Hate Speech which requires companies to remove hate speech within 24 hours of them being reported and the 2017 German Enforcement Act which places pressure on social media companies to remove hate speech at risk of 50 million Euro fines.

In the landmark case of Handyside v. The United Kingdom, the European Court of Human Rights (ECtHR or the Court) underlined that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights protects not only expressions that are favourably received but also those that ‘offend, shock or disturb.’ Despite this apparently robust protection of free speech, the Court has since developed a substantial body of case-law permitting (and even requiring) restrictions of ‘hate speech,’ which it has conceptualized as including even offensive speech. It has done so without properly defining or convincingly demonstrating the need to restrict this category of speech. The Court has allowed for criminal penalties on youngsters sharing out homophobic leaflets in a high school, a Belgian politician handing out Islamophobic leaflets, a German citizen comparing a local government official to Heinrich Himmler and has often used Article 17 (the non-destruction clause) in cases involving negationism or revisionism of the Holocaust.

In light of the above and within the framework of the Future of Free Speech project run by Justitia in collaboration with Columbia University’s Global Freedom of Expression project and Aarhus University’s Department of Political Science, we set out to look at the extent to which the Handyside decision and particularly the benchmarks of shock, offence and disturbance have been been upheld within the framework of hate speech. To this end, we analysed 60 cases decided by the ECtHR and the European Commission of Human Rights’ between 1979-2020. 57 of those cases were brought by the utterers under Article 10, and 3 by the victims of the alleged hate speech under Articles 8 and 14. Cases concern speech linked to homophobia and transphobia, ethnic hatred, religious hatred, violence, totalitarianism and genocide denial. Our analysis reveals that 61% of cases brought by the utterers resulted in the applicant’s loss through a finding of non-violation of Article 10 (21%) or due to the inadmissibility of decisions in 41% of cases (for example through the use of Article 17 in Holocaust denial cases) Only 39% of cases brought by the utterers have resulted in a finding in favour of the applicant. Thus, on average, free speech restrictions have been upheld in just over one out of three hate speech cases. Many of the cases decided by the ECtHR involve statements that deserve moral condemnation from both civil society and governments as well as moral support to the affected minority groups. The response does not necessarily have to include legislative (particularly criminal) penalties, as repeated time and again by the European Commission against Racism and Intolerance and by the United Nations. At the same time, a plethora of free speech cases have gone amiss due to the Court’s approach. A good example is that of Nix v Germany. where the Court rejected the application of a German blogger who posted a picture of Himmler wearing a swastika armband and likened him to the officers of the employment office and the alleged discriminatory treatment his daughter (and many other youngsters) were receiving from them. 

Quantitative and Qualitative Compilation of Findings  

We have compiled our findings into an interactive online database. This allows users to view the cases thematically but also per country. A short overview of each case as well as link to the original judgment is available for easy access and reading. It must be noted that translations from judgements originally in French are our own.  We will be adding to the database as new cases come about and welcome anyone to contact us if they consider that a case has been missed out.

Hate Speech: Semantics and Notions 

As such, the first points to note are that the term ‘hate speech’ is not essentially defined by the ECtHR and there is a variation of thresholds attached thereto. The Court’s references made to hate speech are generic, offering no substantial definition of this form of speech. The closest we have come to a conceptual understanding of hate speech has been Lilliendahl v Iceland (2020). This case involved comments made under an online article by a citizen regarding a proposal to strengthen education and counselling in schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender. 

This was the first time that the Court posed the direct question of whether the speech amounted to hate speech within the meaning of the Court’s case-law. To answer this, the Court set out an explanation of hate speech based on its previous jurisprudence, adopting a hierarchal categorisation, rather than assessing the substance of what can actually fall within the framework of hate speech. The fact that no previous case had actually provided a definition of hate speech did not help the Court in this exercise. It found that hate speech falls into two categories. The first is the ‘gravest forms of hate speech’ that are excluded from any protection through Article 17 (with no definition of what constitutes the ´gravest forms of hate speech´). The second is the ‘less grave forms of hate speech’ which do not fall outside Article 10 but which the Court ‘has considered permissible for the Contracting States to restrict.’ Here, the Court incorporated not only calls for violence or other criminal acts but also insults, ridicule and slander in order to combat ‘prejudicial speech within the context of permitted restrictions on freedom of expression.’ It makes no further elaboration of what this context of permitted restriction may be, something which would have been expected given the fundamental nature of free speech in addition to the very low threshold attached to, for example, insult or ridicule.  

Despite the fact that the term ‘hate speech’ is included in over twenty of the cases examined, with some being from the end of the 90’s, the Court waited until 2020 to establish the above tiers and extrapolation of the term (albeit without too much nuance).  This 2020 positioning demonstrates that the threshold of the ECtHR is in fact low since insults can be prohibited, whilst the reference to ‘prejudicial’ speech is also indicative of this. Illustrative of the low-thresholds but also of the inconsistent position of the Court to hate speech are the differential treatment in Ibragim Ibragimov and Others v Russia (2018) on the one hand and Atamanchuk v Russia (2020) on the other. The former involved the banning of Muslim scholar Said Nrusi’s book, due to allegations that is was extremist literature. Here, the ECtHR held that, since the book depicted a moderate, non-violent, understanding of Islam, the restriction to speech was not legitimate. It noted that: 

‘merely because a remark may be perceived as offensive or insulting by particular individuals or groups does not mean that it constitutes “hate speech.” Whilst such sentiments are understandable, they alone cannot set the limits of freedom of expression.’

In Atamanchuk v Russia (2020), which involved an application made by a journalist/politician after he was convicted of making statements against non-Russians, referring to them as criminals (without making any calls for violence), the Court found that:

inciting hatred does not necessarily involve an explicit call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating xenophobic or otherwise discriminatory speech in the face of freedom of expression exercised in an irresponsible manner.’ 


This threshold is rather broad since it incorporates even the mere justification of hatred and the encapsulation of insults in the ambit of an attack. This is far from the threshold from the international ‘hate speech clause’ namely Article 20(2) of ICCPR which prohibits advocacy for national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

Thus, in the former case, mere insult was not sufficient to prohibit speech whereas in the latter, not only could insult be prohibited, but it was also incorporated in the framework of inciting hatred, without the nexus between insult and hatred being defined by the Court. The differential element of the cases was that in the latter, speech was directed against a particular group characterised by a particular characteristic (ethnicity).

As such, although the Court notes that it may be considered necessary in certain democratic societies to limit some forms of expression, it has yet to provide a coherent legal and/or normative extrapolation of when/where/how these limitations can or should occur. This has resulted in certain anomalies vis-à-vis the treatment of similar cases as demonstrated above. To this end, a proper definitional framework is of utmost importance as well as a coherent set of thresholds. 

A coherent conceptualisation of hate speech by the ECtHR is a necessity since, without this, delineations between acceptable and unacceptable speech cannot be discerned. This is even more pressing in the absence of a Council of Europe equivalent to the Rabat Plan of Action which sets out strict thresholds for hate speech. One of the central objectives of this Plan is to provide for a comprehensive assessment of the state of implementation of the prohibition of incitement in conformity with international human rights law through a robust threshold. 

It is imperative to highlight that hatred should be tackled for the purpose of ensuring just and equal liberal democracies. At the same time, a very central tenet of such a democracy is the fundamental nature of free speech. Whilst the ECtHR’s restrictive approach has arisen from the good (yet paternalistic) intentions of the ECtHR to protect groups perceived vulnerable to hatred, the handling of the manner, at the expense of Article 10 has been unconvincing and confusing. Moreover, nowhere in the Court’s judgment has there been any openness to explore the potential negative side effects that speech restrictions may have on the minorities they try to protect nor on the possible  positive correlation between speech restrictions and violence, as suggested by empirical research.


In light of the above qualitative and quantitative findings, we argue that the ECtHR adopts  an overly-restrictive approach in the ambit of hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law which leaves European citizens and States at a loss on how to properly delineate the limits of hate speech.