New Issue ECHR Law Review

The newest edition of the European Convention on Human Rights Law Review (Vol. 2, Issue 2, 2021) is a special issue dedicated to 'The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections'. It has been co-edited by Basak Çalı & Esra Demir-Gürsel. These are the contents:

EDITORIAL

* Başak Çali and Esra Demir-Gürsel, 'The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal'

ARTICLES

* Mikael Rask Madsen, 'The Narrowing of the European Court of Human Rights? Legal Diplomacy, Situational Self-Restraint, and the New Vision for the Court'

* Emre Turkut, 'The Venice Commission and Rule of Law Backsliding in Turkey, Poland and Hungary' 

* Alice Donald And Anne-Katrin Speck, 'Time for the Gloves to Come Off?: The Response by the Parliamentary Assembly of the Council of Europe to Rule of Law Backsliding'

* Başak Çali, 'How Loud Do the Alarm Bells Toll? Execution of ‘Article 18 Judgments’ of the European Court of Human Rights'

* Esra Demir-Gürsel , 'The Former Secretary General of the Council of Europe Confronting Russia’s Annexation of the Crimea and Turkey’s State of Emergency'

ECHR Articles in Newest NQHR

The newest edition of the Netherlands Quarterly of Human Rights (NQHR, volume 39, issue 3) includes two new academic articles related to the ECHR:

* Dimitrios Kagiaros, 'Reassessing the framework for the protection of civil servant whistleblowers in the European Court of Human Rights':

'The European Court of Human Rights (ECtHR or Court) has included civil servant whistleblowers in the protective ambit of Article 10 of the European Convention on Human Rights. The article argues that the Court should revisit its approach to proportionality in such cases. When determining whether a restriction to a civil servant whistleblower's free speech was necessary in a democratic society, the Court weighs what the article identifies as the quasi-public watchdog function of whistleblowers (namely their role in imparting information on matters of public concern) against their duties and responsibilities as civil servants. In some instances, the Court gives primacy to whistleblowers’ duties of loyalty to the government over their contribution to the accountability of public bodies. The article challenges this approach on the basis that it fails to adequately consider the key justification that underpins the Court's recognition of whistleblowing as speech, namely the audience interest in receiving the information the whistleblower discloses. The article argues that the Court should give primacy to the watchdog function of whistleblowers. It concludes by making suggestions on how the ECtHR can adopt a more principled approach to proportionality in whistleblowing cases.'

* Katie Pentney, 'Licensed to kill…discourse? agents provocateurs and a purposive right to freedom of expression':

'Undercover police operations have emerged from the shadows and into the spotlight in the United Kingdom as a result of a public inquiry into undercover policing and the enactment of the Covert Human Intelligence Sources (Criminal Conduct) Act. The inquiry has revealed troubling details about the ways intelligence and police services have wielded their powers to infiltrate and undermine political groups and social movements over the course of five decades. The problem is not exclusive to the United Kingdom, but is seen the world over. Yet despite the widescale nature of the problem, the legality of agents provocateurs – undercover officers who infiltrate social and political movements to manipulate their messaging, instigate violent tactics and undermine public perception – has received scant attention in legal scholarship or the jurisprudence of the European Court of Human Rights. This article capitalises on the current spotlight to suggest that agents provocateurs can and should be conceived of as (potential) violations of the right to freedom of expression under the European Convention on Human Rights. A purposive approach is required to ensure protection for not only the means of expression – the exchange of information and ideas – but also the ends – vibrant democratic discourse and meaningful public debate.'

ECHR Symposium: Human Rights in the Digital Sphere

On 18 October 2021, the European Court of Human Rights, in collaboration with Japan and US consulate generals in Strasbourg, the René Cassin Foundation and Directorate General of Human Rights and Rule of Law of the Council of Europe, are hosting a hybrid symposium on Human Rights in the Digital Sphere. The programme can be accessed here, and the registration is available via this link.

Here is a short summary of the event prepared by the organisers.

'The digital transformation of our society is certainly one of the fastest and most profound transitions of civilization we have ever experienced. This digital age is leading us to interact more and more online, for information, entertainment, consumption or work. The Covid-19 pandemic revealed the potential of digital services which have enabled people to continue to interact and engage and have made us more resilient. But many questions remain about the consequences of this transformation and its impact on human rights.

The issue of privacy has long been very topical in our daily lives, but the increased use of the virtual space and the development of technology such as AI, brings these debates even more into the limelight. Rather than reducing discrimination or inequality, some algorithmic decision-making systems can exacerbate it, particularly in the public sphere. With the use of predictive features in the justice system, even a new source of law seems to be emerging. Facial recognition tools are bringing back concepts such as physiognomy and the belief that behavioral traits can be inferred from physical characteristics.

Other paramount issues which cannot be separated from internet are freedom of expression and access to correct and trustworthy information. Whereas the internet greatly facilitates ways to express ourselves and the diversity of information available, it is also true that some stakeholders have the power to ban, remove or distort online content according to their interest. How should we draw the line between information worth sharing and that to be banned? And who are those entitled to do so?

Full enjoyment of our rights in cyberspace comes with an adequate protection against the risks in an online environment. Right to private life, human dignity, safety, integrity of the person, non-discrimination are at stake under threat from cybercrime. How can the governments fulfill their positive obligations to protect individuals against crime and safeguard the fundamental rights of cybercrime victims? This challenge requires careful balancing to provide efficient criminal justice response with appropriate rule of law safeguards.

Speakers from different legal systems and jurisdictions, experts and governmental representatives will exchange views, while tackling the complexity of protecting human rights in the digital sphere in our daily lives activities in a one day seminar.

The outcomes of the discussions build further on the current debate on a global scale, about the actions necessary to include in a comprehensive approach in order to address the radical changes digitalization is brining to the online and offline environments.'

PACE Committee Proposes a New Protocol to the ECHR on the Right to a Healthy Environment

This month, the Parliamentary Assembly of the Council of Europe (PACE) is exploring different ways to tackle climate crisis through rule of law and human rights reforms. Here is a brief summary of PACE's ongoing activities in this regard:

"PACE’s Social Affairs Committee is urging an ambitious new legal framework, both at national and European level, to “anchor the right to a safe, clean, healthy and sustainable environment” – and has presented a draft of an additional protocol to the European Convention on Human Rights which would make such a right enforceable in law in all countries which ratified it.

In a resolution and recommendation based on a report by Simon Moutquin (Belgium SOC), the committee said such a legal text would finally give the European Court of Human Rights “a non-disputable base for rulings concerning human rights violations arising from environment-related adverse impacts on human health, dignity and life”.

If approved by the Assembly, the committee’s draft would then be considered by the Council of Europe’s Committee of Ministers, which has the final say on whether to draft a new protocol to the Convention. It took no action on a similar request from the Assembly in 2009.

The committee pointed out that around half the world’s countries have recognised such a “right to a healthy environment” in their constitutions, including 32 Council of Europe member States. Only Europe does not have a regional agreement or arrangement recognising such a right, it added.

As part of a wider push on this issue, the committee also urged the drafting of an additional protocol to the European Social Charter containing such a right, as well as steps to strengthen corporate environmental responsibility through state regulation.

Finally, they urged the drafting of a new convention on “environmental threats and technological hazards”, setting limits on the use of man-made technologies such as AI, nano-technology and genetic engineering.

The parliamentarians also expressed their support for “the right of future generations to a healthy environment and humanity’s duties towards living beings” as a way of entrenching the principle of trans-generational responsibility.

Mr Moutquin’s report, together with six others on the issue of environmental rights, is due to be debated by the Assembly at its Autumn plenary session during an all-day debate on Wednesday 29th September."

If you  wish to know more about the report  of Mr Moutquin and other recent PACE documents regarding climate crisis, rule  of law and human rights, click here.

New Thematic Factsheet on the Rights of LGBTI Persons

The Department for the Execution of Judgments of the ECHR has issued a new thematic factsheet on the execution of the Strasbourg Court judgments concerning the rights of LGBTI persons. Here is a brief summary of the factsheet:

 

"According to the European Court of Human Rights, the principle of non-discrimination is "fundamental" and underpins the Convention along with the rule of law and the values of tolerance and peace. Lesbian, gay, bisexual, transgender and intersex (LGBTI) persons are still subject to homophobia, transphobia and other forms of intolerance and discrimination on the basis of their sexual orientation or gender identity. For this reason, States must take action to ensure the full enjoyment of the human rights of these persons. 

 

This factsheet outlines a number of examples of general and, where appropriate, individual measures adopted and reported by States in the context of the implementation of the judgments of the European Court to safeguard and protect the rights of LGBTI persons including: decriminalisation of same-sex relationships, combating hate crimes, freedom of assembly and freedom of expression, legal recognition of gender identity, access of LGBTI persons to social rights, homosexual persons in the armed forces, same-sex couples and civil union laws, right of residence and private and family life, right to adoption, parental authority and custody of children, maintenance and succession of tenancy agreements."

ECHR MOOC Starts Again on 7 September

Utrecht University's free Massive Open Online Course (MOOC) on the ECHR is starting again on 7 September 2021. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by myself (Antoine Buyse) and my Utrecht University colleagues professor Janneke Gerards and Claire Loven. This is the abstract of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:

Applying to the Court Information Pages

The Court has revamped and extended its pages on how to apply to Strasbourg. The information for applicants is now available in no less than 36 languages, with its entry point here. For each version, such as for example the English-language one, the page contains information on how to make a valid application (including the relevant parts f the Rules of Court), information on the application form, the procedure before the Court, and the state-of-proceedings database which enables applicants to keep track of their case. The language-specific pages equally include the translated version of the Convention itself, a flowchart on how applications are dealt with and informative videos. The perfect entry point for any potential applicant!

Guest Post on Trans Parenthood in A.M. and Others v Russia: Breaking New Grounds?

By Alice Margaria, Senior Research Fellow, Department of ‘Law and Anthropology’, Max Planck Institute for Social Anthropology

 

Introduction

 

On 6 July 2021, the Court ruled that depriving a trans mother of contact rights with her children and restricting her parental rights on the ground of her gender identity, without close scrutiny, violated Article 8 and Article 14 ECHR. The judgment in A.M. and Others v Russia undoubtedly constitutes an important step towards fighting discrimination against trans parents and their children. Yet, can it be considered to break new grounds, or at least clarifying the standards of protection, in terms of recognising LGBT parenthood or addressing the needs of parents and children in contemporary families? This post offers some critical reflections on the anti-stereotyping attitude (not yet approach!) running through the reasoning, coupled with the specific post-divorce nature of the case, thus raising doubts on the actual ground-breaking nature of A.M. and Others from the perspective of LGBT rights.

           

The Story of A.M. and her Children before Russian Courts

 

The first applicant, A.M., who was legally registered as ‘male’, married N. in 2008. They had two children (second and third applicants), born in 2009 and 2012. The first applicant divorced N. in June 2015. They agreed that the children would live with N. and A.M. would pay monthly maintenance allowance. A month later, the first applicant transitioned and was legally recognised as belonging to the female gender. Until December 2016, she regularly spent time with her children. During their meetings, she wore men’s clothes and presented herself as ‘male’ to please N.’s request who would have otherwise objected to their contacts. In December 2016, N. started legal proceedings to restrict A.M.’s contact rights with her children claiming that the visits caused them psychological harm. A.M. lodged a counterclaim. 

 

            In June 2017, the Lyublinskiy District Court of Moscow ordered a forensic psychiatric, sexological and psychological assessment of A.M. and her children. The expert reports stated that, having regard to the age of the children, the role of parents in the development of gender identification, societal pressure and the complexity of their family situation, information about A.M.’s gender transition would have a negative impact on the children. In   March 2018, the District Court ordered the restriction of A.M.’s parental rights. The domestic court clarified that it was not A.M.’s ‘transsexualism’ per se which justified their decision (para 22); rather, as confirmed by the expert reports, it was the disclosure of information on the first applicant’s change of legal gender and the changes resulting from her transition on her personality which would cause long-term psycho-traumatic circumstances for the children and have a negative impact on their health and psychological development. The District Court added that the issue should be re-examined in future, when the children are older in order to ensure their gradual adjustment to their parent’s gender identity whilst preserving their mental and psychological health. A subsequent expert report commissioned by A.M. was very critical of the District Court’s decision and considered the previous expert assessments ‘unscientific in nature’ (para 23). After her appeals were dismissed by domestic courts, A.M. – also on behalf of her children – lodged an application with the ECtHR complaining of a violation of their right to respect for family life (Article 8). She further argued that, the restriction of her parental rights being based on her gender identity, she had suffered discrimination contrary to Article 14 ECHR.

 

… And What Did the Court Say?

 

The Court declared the application admissible only in so far as it pertained to A.M. In disputes between parents concerning parental rights other than custody – so the Court explains it – being a natural parent does not give someone sufficient basis to bring a complaint on behalf of a child. Going into the merits, the Court found the decisions of the domestic courts to interfere with the applicant’s right to respect for family life, to be in accordance with the Russian Family Code, and to pursue the legitimate aim to protect health and morals and the rights and freedoms of the children. The issue to be determined was, therefore, whether restricting A.M.’s parental rights and depriving her of contact rights was necessary in a democratic society. In more concrete terms, the Court’s task was to determine whether domestic courts, when taking the contested decisions, had made a balanced and reasonable assessment of the interests of all parties involved, relying on an in-depth assessment of the entire family situation and other relevant factors, and bearing in mind the children’s best interests (para 53).  

 

            In this regard, the Court observes that domestic courts had attached decisive weight to the expert findings pointing to the negative impact that information about the applicant’s transition would have on the children’s psychological wellbeing. However, so the Court continues, these reports had several weaknesses: the experts had reached their conclusions after acknowledging the lack of reliable research evidence on the issue; they had referred to a single academic paper, which had been ‘highly criticised’ in the academic community; at the same time, the third party interveners (Transgender Europe and ILGA Europe, Human Rights Watch, and the Human Right Centre of Ghent University) had identified multiple studies proving fears about the negative impact of a parent’s gender transition on a child’s development to be groundless; finally, the reports lacked information on how the applicant’s transition constituted a risk for the children’s psychological development or how this risk could have been alleviated (paras 54-55). 

 

            According to the Court, these flaws should have urged domestic courts to verify the reliability and the quality of the expert reports. On the contrary, domestic courts had placed the contested findings in the heart of their decisions in the absence of any demonstrable harm to the children and, in so doing, they had failed to undertake a close and individualised assessment of the specific circumstances and denied due weight to the rights of the applicant (para 57). The Court also observed that domestic courts had applied the most restrictive measure – i.e., depriving the applicant of any contact with the children – without the necessary caution and concern for the irreparable consequences that the passage of time can have on parent-child relationships (para 58). In light of the above, the restriction complained of was considered not necessary in a democratic society and a violation of Article 8 was found.

           

            The Court then turned its attention to assess the applicant’s complaint under Article 14, according to which her gender transition had served as the sole ground for the contested restrictive measure. It began by establishing that, indeed, the applicant’s gender identity had been a ‘decisive factor leading to the decision to restrict her contact with her children’ (para 75). Despite the disclaimer made by domestic courts (i.e., their decisions were not based on the applicant’s trans identity per se), it was inevitable for the Court to conclude that her gender identity was omnipresent during national proceedings and at the centre of deliberations. The applicant had therefore been treated differently from cis parents who seek contact with their children and, according to the Court, there were no convincing and sufficient reasons for this differential treatment.  The domestic courts’ decisions – so the Court concludes – were indeed based on ‘the alleged possible negative effect of the applicant’s gender transition on her children’, rather than on a careful evaluation of the possible harm, the nature and severity of the restriction complained of, and the repercussions it might have had for the children’s development (para 78). Hence, the decision at stake amounted to discrimination in violation of Article 14. 

 

Trans Parenthood as a Fast Emerging Issue: Retrospects and Prospects 

 

One could think that trans parenthood is a novel topic of legal relevance reflecting recent social and scientific developments. However, if regard is given to the ECHR case-law, the Court entered this terrain as early as in 1997. In the case of X, Y and Z v UK, the Grand Chamber clarified the scope of obligations arising from Article 8, which was interpreted not to require national authorities to register a trans man as the father of his child, born to the applicant’s female partner through sperm donation. A bit more than ten years later (and significant case-law developments in respect of the related yet distinct issue of legal gender recognition), a different issue concerning trans parenthood, i.e. the refusal to grant contact rights to a trans mother with respect to her child born prior to transition in the context of an (ended) heterosexual marriage, reached Strasbourg. In P.V. v Spain (2010), the Court found that the applicant’s trans identity had not been a decisive factor in domestic proceedings. The decision to deny contact rights to P.V. was – in the Court’s view – grounded on the child’s best interests and, therefore, no violation of Article 8 taken in conjunction with Article 14 was found. 

 

            A.M. and Others v Russia stems from similar factual circumstances, but the Court’s assessment reaches a different conclusion: domestic courts had no concrete evidence demonstrating any potential damage deriving from the applicant’s gender transition to the children to justify restricting her parental rights, thus breaching Article 8 alone and in conjunction with Article 14. This judgment brings together legal principles arising from two established strands of case-law: (1) that on the regulation of parent-child relationships following separation/divorce, whose influence is particularly traceable in the first part of the judgment (complaint under Article 8); (2) and, the case-law on discrimination on the ground of sexual orientation in the allocation of parental rights, which appears quite prominently in the Court’s assessment relating to Article 14. Starting from the former, the judgment in A.M. and Others reiterates the importance of supporting the continuation of parent-child relationships through direct contact even after parental separation, thus resorting to restrictive measures with exceptional caution (e.g., Elsholz v Germany). It follows that, when deciding on restrictions of parental rights and contact, domestic courts should – unlike Russian courts in A.M. and Others – conduct an individualised and fact-based assessment of the entire family situation to determine what arrangement would serve the child’s best interests (e.g., Zaunegger v Germany). This line of reasoning is continued and its non-discriminatory dimension is further developed in the Court’s analysis under Article 14.  

 

            The second part of the judgment brings to our mind the judgment in Salgueiro da Mouta v Portugal (also explicitly referred to by the Court), concerning the refusal to grant parental responsibility to the (biological) father of a child born from a previous heterosexual marriage because he had entered a same-sex relationship after divorce. In that case (1999), facilitated by the homophobic tone of the justifications adduced by the Lisbon Court of Appeal, the Court concluded that domestic courts had made a distinction based on sexual orientation which was not acceptable under the ECHR and had therefore violated Article 8 taken in conjunction with Article 14. 

 

            Salgueiro and A.M. and Others share what could be named an ‘anti-stereotyping attitude’. The Court proves willing to contest stereotyped notions of LGBT parents which consider them a danger to their children’s psychological development and, more generally, unfit parents. Yet, it does not talk openly of ‘stereotypes/ing’. In A.M. and Others, these concepts appear only in the passages outlining the content of the third-party submissions – which indeed used and insisted on the harm of stereotyping (paras 69 and 71) – but are not explicitly integrated into the Court’s own reasoning. Moreover, the judgment does not display a contextual approach that acknowledges the widespread discrimination and stigmatisation that LGBT persons and their families have been suffering in Russia and beyond, nor it qualifies trans persons as a ‘vulnerable group’ in society – as advocated by the Human Rights Center of Ghent University. In sum, the Court refuses to accept general considerations as a means of adjudicating the allocation of parental rights, but does not seem ready to fully embrace the language and the systematic breadth that an anti-stereotyping approach would entail.  

 

            In 2012, Hodson warned us of Salgueiro’s potential limited relevance for LGBT families and their children. In spite of sexual orientation being a crucial issue in this case, the parent-child relationship at stake nevertheless concerned a biological father and his child born into a heterosexual marriage. As I have recently argued, Salgueiro might have therefore been primarily approached as a case concerning the refusal of parental responsibility to a biological and divorced father, rather than gay fatherhood. And, as such, it ‘broke no new ground in terms of recognising LGBT family units’ (Hodson, p. 511), nor in terms of rethinking conceptions of parenthood and, more specifically, fatherhood. 

 

            I wonder whether similar reflections could be extended to A.M. and Others v Russia. In other words, how much have the facts of the case – in particular, the child being born into a heterosexual marriage and being genetically related to A.M. – weighted in and determined the final outcome? This is not to say that these circumstances should not have given weight. Quite the contrary, cases like A.M. and Others can certainly benefit from the Court’s well-established jurisprudence which requires a careful and fact-based assessment of the child’s best interests when determining post-separation/divorce arrangements. At the same time, however, the factual possibility to rely on this case-law might lead to less substantial involvement on the part of the Court in the discriminatory aspect of the case and, when the factual circumstances do not allow for this possibility, LGBT families risk being left with lower or no recognition and protection of their rights (see for instance, Gas and Dubois v France and X and Others v Austria on second-parent adoption).

 

            This risk is not hypothetical at all in the context of trans parenthood before the ECtHR. As much as trans parenthood can be considered an old jurisprudential topic in Strasbourg (X, Y and Z v UK, 1997), we are witnessing a growing number of applications reaching the Court over the last few years. Some raise complex questions concerning the determination of legal parenthood in cases of procreation post-transition. For instance, is designating a trans man who gives birth to his child as ‘mother’ on the child’s birth certificate compatible with Article 8 alone and in conjunction with Article 14 (O.H. and G.H. v Germany)? Or, is the refusal to register a trans mother who is genetically linked to her child as the latter’s ‘mother’ on her birth certificate in breach of Article 8 alone and in conjunction with Article 14 (C.V. v France and M.E.D. v France)? How the Court will address these questions will more clearly reveal the extent to which the Court is ready to break new grounds in terms of recognising LGBT family relationships. In such cases, indeed, no ‘refuge’ can be found in the case-law on post-separation/divorce arrangements and, therefore, if the Court wishes to continue along the same line as in A.M. and Others, this will inevitably require the extra effort of pushing the boundaries of parenthood/motherhood/fatherhood away from conventional, heteronormative and cisnormative schemes.   

EIN Training on ECtHR Judgment Implementation for Ukraine

The ever-growing European Implementation Network, which recently welcomed more new members, together with The Netherlands Helsinki Committee, is organising a training about the implementation of judgments of the European Court of Human Rights in Ukraine in October. The event will either be held in Kiev on 26th and 27th October, or as an online training (decision to be taken early September about the final format). This is the information from the organisers:

'Applications for this training are now open. We specifically urge non-governmental organisations (NGOs), human rights defenders and human rights lawyers to participate in this event.

The size of the non-implementation problem is of concern in Ukraine, with 68% of leading ECtHR judgments from the last ten years still pending. Each leading case pending implementation reflects an unresolved and recurring human rights violation. 

While pending judgments are high in Ukraine, they also provide opportunities to challenge the lack of progress in national legislative and judicial systems to tackle the policies and practices at the root of repeated violations. 

NGOs play a critical role in the implementation process overseen by the Council of Europe’s Committee of Ministers (CM). NGOs can engage in the implementation process through Rule 9.2. of the Rules of the CM, where they can provide recommendations and critical information. 

This training aims to equip NGOs with the knowledge of the CM judgment execution process and confidence to engage with advocacy tools to support the full and effective implementation of ECtHR judgments.

 What will the training entail?

Presentations by EIN staff, Council of Europe secretariat, and civil society experts on how to engage effectively with the CM judgment execution process.

Sharing of lessons learned by whose have already engaged with the implementation process.

Group exercises on drafting Rule 9.2 submissions on a case currently pending before the CM.

Collaborative brainstorming sessions to unpack strategies for the implementation of pending cases.

Who is this training for?

The staff of NGOs working on, or planning to work on, implementation of ECtHR judgments cocnerning Ukraine;

Independent lawyers or HRDs supporting NGOs in these activities, or working in an independent capacity on these issues;

Staff from specialised organisations working on freedom of expression, intending to engage with the ECtHR judgment implementation process.

Attendees do not have to be based in Ukraine but must have a clear focus on Ukraine.'

The application form as well as information in Ukrainian is available on the EIN website. The event if free of charge. Application deadline: 16th September 2021

Webinar: ECHR and the Theoretical Crisis of Human Rights

On 2 and 3 September 2021, the Glasgow Centre for International Law and Security is hosting a research workshop 'The European Court of Human Rights and the Theoretical Crisis of Human Rights'.  

 

Here is the description of the event prepared by the organisers:
 

It has become a commonplace to argue that human rights are in a state of crisis. This crisis does not only pertain to the social, legal, and political challenges to the protection of human rights, but also to the increased scepticism about the legitimacy, effectiveness, and functioning of the institutions which are called to protect them. As one of the leading human rights institutions in the world, the European Court of Human Rights (ECtHR) has not been immune to such criticisms. A range of actors and stake- holders – including legal scholars, judges, politicians, and the media – have questioned the very existence of the Court, targeted particular aspects of its institutional structure, and probed particular areas of the Court’s case law (and, sometimes, focused on only one adverse judgement, e.g. the Hirst case in the UK). These pressures have affected the law-making domain and have materialised in, for example, the explicit re-affirmation of the principle of subsidiarity and the margin of appreciation in Protocol 15. Yet, there is another strand of critique that pulls in the opposite direction: in academic and policy circles, it is common to criticise the Court of watering down the protection of human rights through its deferential doctrines and the lowest-denominator approach to human rights standards. In the view of many commentators and practitioners, the Court is not doing too much but, conversely, far too little.
 

This ambivalence is telling of a more fundamental, theoretical crisis: the crisis of the idea of human rights. The disagreement in the assessment of the Court and its role is often a consequence of different understandings of the nature and normative foundation. This workshop thus aims to address the pressing and under-explored issue of the theoretical crisis of human rights in the context of the European Court of Human Rights. It has two interconnected goals. First, it aims to contribute to a better understanding of the philosophical foundations of the ECHR.
 

The main purpose of the workshop is to investigate how the philosophy of human rights can help illuminate and address the crisis of human rights in the European context with a view to offering a philosophically-informed response to it. For example, the wide usage of consensus by the Court echoes the terms of the political conception of human rights in that it makes the content and scope of a right contingent upon social, institutional, inductively obtained, and distinctively European facts about human rights. Would the very idea of human rights be endangered if the Court were – under various pressures – to extend its consensus-based reasoning to wider areas of its case-law? Similarly, while the moral-political divide has been used to illuminate the proportionality test of constitutional and other regional courts (e.g. the CJEU), normative theorists have not yet used this perspective to assess the proportionality analysis in the context of the ECtHR. What would the implications of the moral- political debate be for the ECtHR’s use of proportionality test?
 

Second, the workshop aspires to enrich the philosophical debate about the nature of human rights by drawing attention to the actual functioning of a leading human rights court and to complex implementation mechanisms within and by state parties. The philosophers of human rights have not yet systematically explored the European system of human rights protection, while more doctrinal- inclined scholars have not made use of the philosophical work in appraising the Court’s practice. In order to adequately tackle the question of theoretical crisis of the idea of human rights in the European context, one should combine the knowledge of the European system with a cutting-edge understanding of the philosophical accounts of human rights. The workshop thus aims to bridge the gap between the two fields of scholarly inquiry: philosophical and doctrinal. To this end, the workshop organisers have invited scholars different disciplinary orientations and levels of seniority with a view to gathering a critical mass of interdisciplinary scholarship on this topic and identifying avenues for further research cooperation.
 

If you are interested in joining the Workshop online – via Zoom, please contact Dr Alain Zysset (alain.zysset@glasgow.ac.uk ) to request the Zoom log-in details.

Summer Break ECHR Blog

Dear readers,  this blog is taking a Summer break after another intense blogging season on the ECHR and its Court. We wish all of you a good Summer or Winter, depending on the hemisphere,

Antoine Buyse & Kushtrim Istrefi

New Book: Rights of Families of Disappeared Persons

Grażyna Baranowska (Poznan Human Rights Centre) has published a book titled Rights of Families of Disappeared Persons (Intersentia). 

 

Here is the abstract of the book:

 

"This book examines how international judicial and non-judicial bodies in Europe address the needs of the families of forcibly disappeared persons. The needs in question are returning the remains of disappeared persons; the right to truth; the acceptance of responsibility by states; and the right to compensation. These have been identified as the four most commonly shared basic and fundamental needs of families in which an adult was disappeared many years previously and is now assumed to be dead, which is representative of the situation of the vast majority of families of disappeared persons in Europe.

The analysis covers the judgments and decisions of the European Court of Human Rights, the UN Human Rights Committee, the International Criminal Tribunal for the former Yugoslavia, the Human Rights Chamber for Bosnia and Herzegovina, the Human Rights Advisory Panel in Kosovo, as well as the activities of the Committee on Missing Persons in Cyprus, the Special Process on Missing Persons in the Territory of former Yugoslavia, the UN Committee on Enforced Disappearances and the International Commission on Missing Persons. In so doing, the book demonstrates whether, how, and based on what principles these four needs of the families of disappeared persons can constitute a claim based on international human rights law."

Country Factsheets on the Execution of Judgments of the European Court of Human Rights

Recently, the Committee of Ministers' Department for the Execution of Judgments of the European Court of Human Rights launched a dedicated webpage which gives a country-by-country overview by way of factsheets on each state party to the ECHR. Each factsheet gives an overview of key issues flowing from the judgments of the Court which are currently pending before the Committee of Ministers. The factsheets link on to more detailed information on specific cases. The sheets also include thematic information, e.g. on new domestic laws and policies or other reforms made by states following ECtHR judgments, listing main achievements under closed cases as well as main cases under supervision. They show statistics on the number of 'leading' and 'repetitive cases' per state. 

As the Council of Europe specifies, 'the creation of this new webpage aims to further enhance the transparency of the ECHR judgments’ execution process and to make easier the access to relevant information by all interested parties.' Indeed a very useful resource in the growing amount of information on the stage after the Court issued its judgment in a case.

Aliens before the European Court of Human Rights

David Moya and Georgios Milios have edited a volume titled Aliens before the European Court of Human Rights: Ensuring Minimum Standards of Human Rights Protection (Brill). The book is geared towards all those interested in migration and asylum law and the case-law of the ECHR.

 

Here is a short abstract of the book:

 

'This volume conducts an in-depth analysis of the ECtHR’s case law in the area of migration and asylum, exploring the role of the Court in this area of law. Each chapter deals with the case law on one specific ECHR article that is relevant for migrants, asylum seekers and refugees. In addition, the volume is enriched by two additional studies which deal with issues that are treated in a transversal manner, namely vulnerability and the margin of appreciation. The volume systematises the case law on aliens’ rights under the ECHR, offering readers the chance to familiarise themselves with or gain deeper insight into the main principles the Strasbourg court applies in its case law regarding aliens.'

Summer School: ECHR in Times of Crises

From 5 to 10 September 2021, TU Dresden and Leipzig University are organising a summer school 'Human Rights in Theory and Practice: The European Convention on Human Rights in Times of Crises'. The summer school will take place both online and in person (in Dresden).  

 

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 17 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.

New ECHR Readings

Please find below a new batch of articles and other publications related to the ECHR and the Court:

* Medes Malaihollo, ‘Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights’, Netherlands International Law Review 2021, vol. 68, no. 1, p. 121–155: 

 

'Due diligence is a frequently employed notion in international law, yet much is still to be explored about this concept. This article aims to contribute to an understanding of due diligence obligations in international law, which is useful as it can form the basis for a further clarification of corresponding legal rights of subjects of international law. With this purpose in mind, this article initiates the construction of a working model of due diligence in international law by exploring this notion from two perspectives: an accountability perspective and a regulatory perspective. Subsequently, this article will use this model to compare the operation of due diligence obligations in two branches of international law: international environmental law and international human rights law. In doing so, it will become clear that due diligence contains two core elements: ‘reasonableness’ and ‘good faith’. Moreover, it will become apparent that the operation of due diligence obligations in these two branches has implications for systemic issues in international law. Further research on the operation of due diligence obligations in other branches of international law is therefore recommended.' 

* Veronika Fikfak, ‘Friendly Settlement Before the European Court of Human Rights’, iCourts Working Paper Series, No. 247 (forthcoming in International Journal of Constitutional Law 2022):

'Even though they represent almost 50% of all reported cases before the European Court of Human Rights, settlements of human rights violations escape scholars’ attention. Whilst victims are increasingly expected to resolve their disputes amicably, it is unclear whether applicants will be better off accepting settlement offers rather than proceeding to litigation. The paper charts the practice of friendly settlements before the Court from 1980s to today, mapping a shift in approach from seeking bilateral solutions to the proactive role of the Registry as mediator encouraging states and applicants to settle their cases to relieve the Court of the heavy workload. The study of 10,500 cases reveals how strategies adopted by the Registry – from procedural changes to how and when consent is given to settlement, to the framing of settlement offers and a close relationship with representatives of the respondent state – have favoured the most frequent violators of the Convention and sidelined the interests of the applicant. The analysis uncovers that the imbalance between parties and lack of enforcement are very much present in the ECtHR settlement system and that the active role of the Registry has reinforced, rather than redressed these concerns. The findings expose the dangers of pursuing en masse settlement in the human rights context and raise concerns about achieving long-term justice for victims of human rights violations through other means than adjudication.'

* Daniel Peat, ‘The Tyranny of Choice and the Interpretation of Standards: Why the European Court of Human Rights Uses Consensus’, 53 N.Y.U. J. Int’l L. & Pol. 381 (2021):

'Recent studies in social psychology have consistently shown that individuals are inherently averse to choice overload. Faced with complex choice sets, people are unhappier with the choices they make, more likely to regret their decision, and more prone to reverse their initial choice. This article tests the hypothesis that individuals’ innate aversion to choice overload might explain how courts and tribunals interpret standards such as fairness, necessity, and proportionality. Drawing on the findings of an empirical study of 461 judgments of the Grand Chamber of the European Court of Human Rights, the article suggests that the Court’s consensus doctrine must be understood partially as a reaction to the tyranny of choice.'

* Roberta Medda-Windischer, ‘Religious and Linguistic Minorities and the European Court of Human Rights: Between Restrictive Measures and Concerted Solutions’, Europa Ethnica 2021, Vol. 78, no. 1, pp. 36-47.

* Chris Wiersma, ‘The ‘Disobedience’ of Journalists at Public Assemblies: An Analytical Critique of the ECtHR's Case Law from a Media Freedom Perspective’, Nordic Journal of Human Rights, 2020, Vol. 38, no. 4, pp. 261-278.

New Factsheet on Conditions of Detention under the ECHR

The Council of Europe Department for the Execution of Judgments of the European Court of Human Rights has issued a new thematic factsheet on the execution of the Court judgments concerning conditions of detention and prohibition of torture.

 

Here is a brief summary of the report:

"Article 3 of the European Convention on Human Rights enjoins States to ensure that detainees be held in conditions which are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, detainees’ health and well-being are adequately secured. Also, according to the basic principlesof the European Prison Rules, persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding in custody. Moreover, prison conditions that infringe prisoners’ human rights are not justifiedby lack of resources, while all detention should be managed so as to facilitate the reintegration into free society of persons deprived of their liberty.1The present factsheet sets out examples of measures adopted and reported by States in the context of the execution of the European Court’s judgments with a view to preventing and eradicating torture and other forms of ill-treatment of detainees in accordance with Article 3 of the European Convention. It focuses on the following issues: material conditions of detention; detainees’ physical and mental healthcare, psycho-social support and preparation for social reintegration; detention on remand and in police detention facilities; protection and prevention of detainees’ ill-treatment by prison staff and inmates; national inspection, monitoring and complaint systems –effective remedies." 

 

The Department for the Execution of ECHR Judgments has previously issued other important thematic and country factsheets, which can be accessed here.