Friday 24 December 2021

Last post of 2021: Covid, Architects and Spaghetti Monsters

Dear readers, as another Covid-19 year slowly grinds to a halt, this is the last post of 2020, as this blog will take a Winter break. 

For the European Court of Human Rights this was another challenging year, with what we could call the start of a substantive Covid-19 case-law line, relating to such issues as freedom of movement and mandatory vaccination. No doubt, there will be more to come. And the general human rights situation within the ECHR's geographical reach remains worrying, with new judgments finding violations of Article 18 ECHR for example and a continuing series of cases about (the lack of) judicial independence. Enough reasons for this blog to continue following Strasbourg developments in the year ahead.

It was also the year in which the architect of the Court's current, iconic building passed away: Sir Richard Rogers. And also, to end with a comic note, the year in which Pastafarianism, the movement venerating the Flying Spaghetti Monster, was not recognised as a religion under Article 9 ECHR by the Court. 

We wish all our readers a good holiday season and a healthy 2022!
Antoine Buyse and Kushtrim Istrefi, co-editors of the ECHR Blog

Tuesday 21 December 2021

Academic Freedom in Turkey before the Strasbourg Court: A Third Party Intervention by a Coalition of Academic Interveners

This week a coalition of academics, including this blog's editors, has submitted a third party intervention to the European Court of Human Rights in the so-called 'Academics for Peace' cases.

The background of these cases is the following: in the wake of the failed coup d'état of July 2016, the Turkish Government has employed emergency measures not only to re-establish peace and order, and to deal with those directly responsible for the coup d'état, but also to silence and in many cases attack, among others, journalists, academics or minorities. These systemic attacks undermine the overall academic freedom in Turkey.

This currently pending group of applications before the European Court of Human Rights, the 'Academics for Peace' cases (Kamuran AKIN v. Turkey and 42 other applications, applications nos. 72796/16, 72798/16, 72799/16 et al.), illustrate this. The cases concern a group of academics from different Turkish universities who on 11 January 2016 issued a statement entitled “We will not be a party to this crime”, which critically questioned the Turkish Government’s role in the conflict in South-East Turkey and the associated serious human rights violations. President Erdoğan accused them of treason, and hundreds of academics, including the applicants, were then dismissed from their university positions through a series of emergency decrees. 

The group of academics who submitted the third-party intervention before the European Court of Human Rights addresses the connection of the cases with academic freedom and elaborates on the importance of academic freedom in and for the Convention system. The third party intervention was presented by Professors Helen Duffy and Philip Leach (co-supervisors in the Turkey Litigation Support Project) on behalf of a group of 19 academics, including the co-editors of this blog (Antoine Buyse  and Kushtrim Istrefi).

Friday 17 December 2021

New Book: Framing a Convention Community

Cedric Marti of the University of Zurich has published a book entitled Framing Convention Community: Supranational Aspects of the European Convention on Human Rights (with Cambridge University Press). 

Here is the book abstract:

'The European Convention on Human Rights (ECHR) has evolved from an international agreement into a highly integrated legal community with an ever more pervasive effect on domestic law and individuals. The supranational authority of the European Court of Human Rights bypasses the national state in a growing number of other areas. Understanding the evolution of the ECHR and its Court may help in explaining and contextualising growing resistance against the Court, and in developing possible responses. Examining the Convention system through the prism of supranationality, Cedric Marti offers a fresh, comprehensive and interdisciplinary perspective on the expanding adjudicatory powers of the Court, including law-making. Marti addresses the growing literature of institutional studies on human rights enforcement to ascertain the particularities of the ECHR and its relationship to domestic legal systems. This study will be of great value to both scholars of international law and human rights practitioners.'

Monday 13 December 2021

Secretary General Inquires on the Situation in Poland: A Test for Poland and Article 52 ECHR

On 24 November 2021, the Polish Constitutional Court issued a ruling that challenged both the authority of the European Court of Human Rights to decide on the lawfulness of appointment of judges in national courts, and the standards of fair trial under the Convention. In response to this worrying development, on 7 December 2021, the Secretary General of the Council of Europe requested the Polish Government “to furnish explanations concerning the manner in which [its] … internal law ensures the effective implementation of Article 6 and 32 of the Convention following the judgment of the [Polish] Constitutional Court of 24 November in the case K 6/21”. 
The Secretary General explained that the legal basis for this inquiry is based on Article 52 of the Convention, which provides that “[o]n receipt of a request from the Secretary General … any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention”. 
A textual interpretation of Article 52 ECHR (e.g. words ‘shall furnish’) suggests that Poland is obliged to provide in due time all the necessary information requested by the Secretary General. It has also been observed in the past that when the Secretary General triggers Article 52:
The State has the obligation to provide truthful explanations... The State has an obligation of result to provide explanations about the effective implementation of the Convention in its internal law: the State cannot, therefore, confine itself to providing explanations of a formal nature. On the contrary, bearing in mind also the obligation to execute treaty obligations in good faith …, a State has the obligation to furnish precise and adequate explanations which make it possible to verify whether the Convention is actually implemented in its internal law. This necessarily implies that the State must furnish information of a sufficiently detailed nature about the national law and the practice of the national authorities, in particular the judicial authorities, and about their conformity with the Convention as interpreted in the case-law of the European Court of Human Rights.
Poland was asked to answer to the Secretary General no later than 7 March 2022. It remains to be seen how or if Poland will respond to this inquiry. The Secretary General may again follow up with Poland on this or other issues concerning the Convention given that Article 52 does not prevent the Secretary General from making further inquiries with State parties to the ECHR.
It must be noted that Article 52 has scarcely been used in the past and remains a rather under researched provision. There seem to be no clear procedures on how and when the Secretary General issues inquiries under the ECHR, or what happens if a State does not provide timely  and truthful explanations to the Secretary General. The aim of Article 52 is also rather vague. Article 52 was inspired by a draft article on the UN covenants that provided for ‘a right to interrogation’ when States do not comply with human rights. Yet, this does not imply that the Secretary General may or should use Article  52 to ‘interrogate’ States. The Secretary General may strategically decide to employ it in order to engage in a form of dialogue with States.
In light of the foregoing, the outcome of the Secretary General’s inquiry on Poland may prove to be important not only for the present case, but also for the future potential of Article 52 ECHR.

Wednesday 8 December 2021

New Book on the ECtHR and European Public Order

Kanstantsin Dzehtsiarou of the University of Liverpool has just published a new book with Cambridge University Press, entitled Can the European Court of Human Rights Shape European Public Order? It is available as print book and in electronic version. This is the abstract: 

'In this book, Kanstantsin Dzehtsiarou argues that, from the legal perspective, the formula 'European public order' is excessively vague and does not have an identifiable meaning; therefore, it should not be used by the European Court of Human Rights (ECtHR) in its reasoning. However, European public order can also be understood as an analytical concept which does not require a clearly defined content. In this sense, the ECtHR can impact European public order but cannot strategically shape it. The Court's impact is a by-product of individual cases which create a feedback loop with the contracting states. European public order is influenced as a result of interaction between the Court and the contracting parties. This book uses a wide range of sources and evidence to substantiate its core arguments: from a comprehensive analysis of the Court's case law to research interviews with the judges of the ECtHR.'

Monday 29 November 2021

Online Training on Combating Violence Against Women and Domestic Violence and the ECHR

The European Implementation Network is organising a free online training on 16 December on the topic 'Combatting violence against women and domestic violence by supporting the implementation of judgments of the European Court of Human Rights'. It is aimed at practitioners and will be held in English with a possibility of simultaneous interpretation into Russian if the need arises. The full programme can be found here and the organisers kindly ask potential participants to register before the end of this week (so before 3 December) here. This is the abstract of the training:

'Violence against women and domestic violence (“VAW/DV”) are grave violations of human rights and forms of discrimination. They occur in every Council of Europe member state, despite some positive developments in law, policies and practices. Shortcomings in domestic legal frameworks, the lack of specialized social services and discriminatory practices and attitudes have all been contributing to the perpetuation of domestic violence. The coronavirus is exacerbating the issue. The forced cohabitation of many families around the world has shown signs of a real ‘emergency in an emergency’. 

Governments have a responsibility to respect, protect and fulfil the human rights of all their citizens. However, in the area of violence against women and domestic violence, many are failing to carry out the reforms necessary – and will only do so as a result of sustained pressure at the national and international levels. 

Judgments from the European Court of Human Rights (“ECtHR”) have an invaluable role to play in pushing authorities to make the necessary reforms. Nevertheless, in order for effective reforms to result from the ECtHR implementation process, it is often essential that actors on the ground are empowered to actively engage in the process for implementing the judgment. 

On 16th December, EIN will organise an online training dealing with the implementation of ECtHR judgments in the field of VAW/DV. This online training is a core element of an EIN project supported by the Permanent Representation of Luxembourg to the Council of Europe. The project aims to provide comprehensive support to specialist organisations, to ensure that they can effectively contribute to the ECtHR implementation monitoring system, in every country where there is an ECtHR judgment concerning domestic violence pending implementation. The objective of the training is to sensitize expert organisations about the importance of their contribution to the implementation of judgments in this area, and equip them with tools on how to make best use of the supervision process.' 

Friday 19 November 2021

New Book: Assisted Suicide and the European Convention on Human Rights

Stevie Martin (University of Cambridge) has published a book titled Assisted Suicide and the European Convention on Human Rights  (Routledge). On 4 November, the book won the Yorke Prize - an annual award of the Faculty of Law at the University of Cambridge for a publication of exceptional quality, which makes a substantial contribution to a field of legal knowledge.

Here is the abstract of the book:
"Locating assisted suicide within the broader medical end-of-life context and drawing on the empirical data available from the increasing number of permissive jurisdictions, this book provides a novel examination of the human rights implications of the prohibition on assisted suicide in England and Wales and beyond. Assisted suicide is a contentious topic and one which has been the subject of judicial and academic debate internationally. The central objective of the book is to approach the question of the ban’s compatibility with the European Convention on Human Rights afresh; freed from the constraints of the existing case law and its erroneous approach to the legal issues and selective reliance on empirical data. The book also examines the compatibility of the ban on assisted suicide with rights which have either been erroneously disregarded or not considered by either the domestic courts or the European Court of Human Rights. Having regard to human rights jurisprudence more broadly, including in the context of abortion, the research and analysis undertaken here demonstrates that the ban on assisted suicide violates the rights of a significant number of individuals to life, to freedom from torture or inhuman or degrading treatment and to private life. Such analysis does not depend on a strained or contrived approach to the rights at issue. Rather, the conclusions flow naturally from a coherent, logical application of the established principles governing those rights.  
While the focus of the book is the Suicide Act 1961, the conclusions reached have implications beyond England and Wales, including for the other devolved jurisdictions and international jurisdictions. Beyond courts and legislators, it will be a valuable resource for students of human rights and medical law, as well as medical and legal practitioners and academics working in human rights and end-of-life care."

Thursday 18 November 2021

Call for Contributions: European Yearbook on Human Rights 2022

The European Yearbook on Human Rights has issued a call for contributions for its 2022 issue. The Yearbook publishes mostly about the European Convention on Human Rights and the Council of Europe. It also contains sections on human rights in the European Union, the Organisation for Security and Co-operation in Europe as well as cross-cutting analysis and commentary.

Here is the description of the call:

The European Yearbook on Human Rights is shedding light on current human rights topics of concern and the most pressing issues that impair human rights protection, the rule of law and democracy in Europe and beyond. 

The Yearbook is supported by three major Austrian human rights institutions dedicating their work to researching, teaching and promoting human rights – 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 Vienna Forum for Democracy and Human Rights – and the Global Campus of Human Rights, Venice. It is published by Intersentia and all contributions are subject to a double-blind review process ensuring the highest academic standards.

Authors will be invited to submit full contributions based on an abstract (max 500 words) that should be send by 15 December 2021. Abstracts should be submitted with a short bio to

The deadline for submitting the manuscript is end of March 2022.

For further information on the European Yearbook on Human Rights see

Wednesday 10 November 2021

Just Satisfaction Awarded by the Court : Statistics

The Execution Department, which supports the Committee of Ministers in monitoring the execution of the Court's judgments by the states, has recently expanded the factsheet webpages per country. They now also include the amounts of just satisfaction that the Court has awarded to victims of violations of the Convention. The statistics can be accessed per country but also through an online tool and map. It enables you to see how much in total a state party to the ECHR has been made to pay over time (measured from 2011 onwards) or in a specific year. A specific part of the HUDOC search engine is also still dedicated to execution information.

Tuesday 9 November 2021

Guest Post: Turning Water into Wine - The Concealed Metamorphosis of the Effective Control Extraterritoriality Criterion in Carter v. Russia

By Vassilis Tzevelekos and Antal Berkes (University of Liverpool)
On 21 September 2021, the Third Section of the European Court of Human Rights (ECtHR, Court) rendered its judgment in the case of Carter v. Russia. The case is named after the applicant, who is the widow of A.V. Litvinenko - a former KGB agent who was granted asylum by the United Kingdom (UK). In 2006, Litvinenko was admitted to hospital in the UK, where he subsequently passed away. His death was caused by acute radiation syndrome resulting from the ingestion of polonium 210. The ECtHR accepted that the available evidence established beyond reasonable doubt that Litvinenko had been poisoned by two de facto agents/organs (under Article 8 of the Articles on the Responsibility of States for Internationally Wrongful Acts) of Russia, who acted under the direction of the Russian intelligence services. According to the Court, by “putting the poison […, the Russian agents] knew that, once ingested, the poison would kill Mr Litvinenko. The latter was unable to do anything to escape the situation. In that sense, he was under physical control of [the Russian agents] who wielded power over his life” (para. 160). The Court found Russia to be in breach of both the substantive and the procedural limbs of Article 2 of the European Convention on Human Rights (ECHR), which protects human life.


Carter, which -we must note- is not yet final, is a courageous judgment. The sociolegal challenges of what is a fairly complex and a highly politicised case are quite obvious. Yet, most importantly, what makes Carter a courageous judgment is that the Court appears to depart from one of its key case law tenets regarding the extraterritoriality of negative human rights obligations. Prior to discussing Carter’s significance and contribution to the evolution of extraterritoriality, we first highlight certain noteworthy legal issues raised by the judgment and we explain this note’s focus; we then provide a framework of analysis regarding extraterritoriality and effective control.


A Plethora of Noteworthy Legal Issues and the Note’s Focus


Carter raises various interesting questions spanning from standards of evidence -where our view is that the Court did a commendable job in keeping its case law with respect to the burden of proof aligned with that of the Inter-American Court of Human Rights in cases like Velásquez-Rodríguez v. Honduras (para. 135) and Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (para. 270)-, to the concurrent exercise of jurisdiction by Russia and the UK over the same situation/set of facts resulting in the death of Litvinenko. Other interesting aspects are the attribution of conduct to a state of persons acting under its direction, and the jurisdictional basis of Russia’s positive duty to investigate the circumstances leading to loss of life outside of its territory, where the Court appears to be missing active and/or passive nationality as autonomous jurisdictional links/bases in international human rights law, relying instead, yet again (e.g., Güzelyurtlu and Others v. Cyprus and Turkey, paras. 188‑189 and Hanan v. Germany, paras. 139-142), on the Russian authorities’ application of domestic law and investigation into the Litvinenko case (paras. 131-133) -which, after all, in our view is nothing more than a means for the respondent to comply with a positive international human rights law duty.


Interesting as such questions may be, the focus of this note is on a different legal issue. With Carter, the ECtHR moves in the direction of the correlation of extraterritoriality with causality/attribution with respect to the breach of negative human rights rules. Essentially, what the Court holds in Carter is that causality, that is to say, the attribution to a state of conduct that constitutes a breach of its negative human rights’ obligations (i.e., direct attribution of a human rights wrong), can lead to state responsibility for the breach of negative extraterritorial human rights obligations irrespective, in a sense, of the exercise of effective control over territory or a person by the state causing the wrong. This is neither trivial, nor an easy task. It is absolutely understandable that the Court chooses to be quite careful in maintaining a fine balance between continuity in its case law, reflected in its efforts to reiterate (a variation of) the notorious ‘effective control’ over territory or a person criterion as a precondition for negative ECHR obligations to apply extraterritorially, and in the erosion of said criterion by means of the association in essence of attribution/causality with extraterritoriality, such that, to an extent, this new approach is reminiscent of or even coinciding with ‘cause-and-effect’ or control/power over the enjoyment of a right. But, to unpack this point, we must first go back to the origins of the effective control criterion.


Extraterritoriality and Effective Control: The Earlier Approach of the Court


Effective control as a precondition for the ECHR parties’ duty to abstain from violating their negative human rights obligations outside of their territory emerged in Banković. ‘Emerged’ here is a rather refined term to say that ‘effective control’ as an extraterritoriality criterion has no explicit legal basis in human rights law and/or in the text of the ECHR; that is to say, effective control is a standard/criterion constructed or devised by the ECtHR in Banković. In that case, the Court relied on this very criterion/doctrine to refrain from exercising jurisdiction in a politically sensitive and a legally complex case involving questions of attribution of conduct to states and/or an international organisation as a preliminary question conditioning the establishment of responsibility for life losses caused by NATO air strikes against Serbia.


What enabled the ECtHR to raise its infamous effective control criterion in Banković and present it as an enduring and already established standard was Loizidou (preliminary objections, paras. 62-64, in particular, and merits, paras. 52-57, in particular). Loizidou and Banković are to an extent comparable as they both concern negative human rights obligations extraterritorially. However, as one of us has argued, where these two cases differ is that Loizidou raised a question that was absent from Banković, namely the question of the attribution of the conduct of the local administration in the northern part of Cyprus to the respondent state, Turkey. The latter was found by the ECtHR to exercise effective control over the said subordinate non-state entity. Effective control in this context is a criterion for attribution; and attribution was also relevant in Loizidou because it was a precondition for the ECtHR to exercise its own jurisdiction against the respondent. In simpler words, effective control was primarily employed in Loizidou for the purposes of attribution -and the International Law Commission’s rules on state responsibility confirm that the Court was absolutely right to do so (ARSIWA Commentaries, p. 48). Therefore, attribution in Loizidou was, very correctly (albeit through reasoning that, admittedly, could have benefited from more clarity), treated as a precondition for establishing Turkey’s liability for human rights breaches that it committed outside of its territory, through a non-state entity that was effectively controlled by it and whose conduct was, therefore, attributable to it. Per se, effective control in Loizidou was only indirectly and incidentally relevant to the question of whether ECHR states have extraterritorial human rights obligations. Had the circumstances of the case not raised an issue of attribution to the respondent state of the conduct of the subordinate local administration in the northern part of Cyprus, effective control would not have been involved in Loizidou.


Indeed, until Banković, extraterritorial human rights obligations were only natural, in the sense that, with respect to negative human rights obligations in particular, no state shall be allowed to directly cause human rights violations both within and outside of its territory. This reflects the so-called ‘cause-and-effect’ approach to negative extraterritorial human rights obligations. However, with Banković, the Court rejected ‘cause-and-effect’. This was made possible by (mis)appropriating the Loizidou effective control criterion and, rather arbitrarily, transforming said criterion, from a criterion used under certain circumstances for the purposes of attribution, into an autonomous criterion conditioning extraterritoriality. That is, by completely detaching the effective control criterion from attribution, the Court shifted to effective control (over territory or persons) as an autonomous criterion conditioning extraterritoriality. The Court thereby, rather arbitrarily, but also for arguably legitimate reasons aiming, at that time, to safeguard the regional character of the ECHR and to delimit the Convention’s so-called espace juridique, created an artificial criterion for extraterritoriality. This new extraterritoriality criterion, namely effective control, enabled the Court to declare inadmissible the application in Banković, and to thereby abstain from examining the question of the attribution of the alleged wrongs to the respondent ECHR parties and the merits of the case.


Banković is a telling example of why effective control shall not have a place in extraterritoriality -unless this standard is employed for the purposes of attribution, as in Loizidou. When effective control is employed in a manner that discounts attribution and autonomously conditions the ECHR’s applicability extraterritorially, conduct such as air strikes, remote killings, or cyber-attacks against persons overseas caused by/directly attributable to the ECHR states parties fall outside of the Convention’s applicability. This leads to impunity, essentially giving states a green light, as long as they do not exercise effective control, to cause deaths overseas. Banković and, more generally, effective control as a precondition for states to have to respect human rights outside of their territory has been criticised so abundantly and strongly in scholarship (including our scholarship -1, 2, 3, 4, and 5) that we simply cannot add anything meaningful or novel here in this respect. Holding that a state can kill people outside of its territory as long as it does not exercise (a certain type or degree of) effective control is not just morally reprehensible (inter alia because it promotes a culture of double standards), but also legally groundless.


This may offer an explanation as to why, since Banković, the ECtHR has sought to mitigate its effective control criterion. Three mitigation avenues are worth highlighting in this brief note. First, it seems that effective control is not indispensable for positive human rights obligations to extend extraterritorially (e.g., Rantsev v. Cyprus and Russia, para. 289; Romeo Castaño v. Belgium, paras. 37-43; Zoletic and Others v. Azerbaijan, para. 191). Obviously, the thorny question of what justifies or activates extraterritorial positive obligations and the standards of diligence and pro-activeness in human rights protection that a state must demonstrate exceed the confines of this note. Secondly, the ECtHR case law gives weight to the procedural dimension of protection, emphasising the duty on states to investigate, for instance, incidents leading to the loss of life outside of their territory which they are involved in or with which they are connected (e.g., Georgia v. Russia (II), paras. 331-332; Hanan v. Germany, paras. 137-145). One might feel tempted here to note how oxymoronic and deficient it is from a human rights’ teleology perspective to essentially allow states to kill people outside their territory, and then hold them accountable because they failed in their procedural duty to duly investigate these killings. The third type of ‘easing’ concerns negative human rights obligations; thus, this type of mitigation of the effective control criterion is central to the question that we are exploring in this note. After Banković, the ECtHR has gradually lowered the threshold of or even created exceptions from (full) effective control as a precondition for extraterritoriality in the field of negative human rights obligations (e.g., Issa and Others v. Turkey, paras. 70-71, overall, instead of effective, control exercised temporarily; Pad and Others v. Turkey, paras. 53-54, concerning shots fired from a Turkish military helicopter killing people in Iran; Andreou v. Turkey, where the Court applied ‘cause-and-effect’ for extraterritorial shooting resulting in life loss, Al-Skeini and Others v. the United Kingdom, para. 149, presumed exercise of authority and control because the UK exercised some of the public powers normally to be exercised by a sovereign government in Iraq; Jaloud v. The Netherlands, para. 152, exercise of authority and control over persons through shots fired at a car). On the other hand, thus far, effective control remains valid as a criterion, whereas the ECtHR has, time and time again, emphasised that causality (i.e., in this context, the direct attribution of the breach of a negative human rights obligation) does not automatically engage state responsibility (Banković, para. 75; Medvedyev and Others v. France, para 64; M.N. and Others v. Belgium, para. 112). In different terms, the Court -unlike what other international human rights law authorities nowadays do (e.g., Human Rights Committee, General comment No. 36, para. 63, power or effective control over the enjoyment of the right to life; African Commission on Human and Peoples’ Rights, General Comment No. 3, para. 14; Inter-American Court of Human Rights, The Environment and Human Rights Advisory Opinion, para. 101, causality of transboundary environmental harm establishing extraterritorial jurisdiction, which has been discussed by one of us here)- has in the past rejected a ‘cause-and-effect’ approach, essentially holding that the rule is that, irrespective of attribution/causality, state jurisdiction (i.e., obligations) to respect human rights extraterritorially does not exist unless effective control in its various forms and turns is exercised.


Carter’s Contribution to Negative Extraterritorial Human Rights Obligations


To return to Carter, this judgment contributes to negative extraterritorial human rights obligations in that it further mitigates effective control. It does so, however, by adding a rather imprecise or wanting sort of assortment of or accessory to control. The administration of poison to Litvinenko by the de facto agents of the Russian Federation was found by the Court to amount to “exercise of physical power and control over his life in a situation of proximate targeting” (para. 161). One may wonder what role proximity might be playing in this context or whether the Court is establishing another presumption, namely that, in situations of proximate targeting or of isolated and specific acts involving an element of proximity (para. 129) control applies. Be that as it may, this is not the major contribution of Carter to the regulation of negative extraterritorial human rights obligations. As we have already argued, other judgments in the past have mitigated or complemented the variations of the effective control criterion. Seen from this perspective, Carter is just a welcome addition that requires further development and clarity as to the exact meaning of ‘proximate targeting’.


Yet, the truly novel part of Carter and its major contribution to negative extraterritorial human rights obligations stems from the fact that, reading between the lines of the judgment, what seems to have prompted the Court to further narrow down effective control (and essentially bypass it in this case by playing the ‘proximate targeting’ ‘card’) is causality. First, by holding that jurisdiction is established because of the “exercise of physical power and control over [Litvinenko’s] life” (para. 129), the Court is actually shifting to control/power over the right to life, instead of control over territory or a person. Second, in Carter, the Court discusses attribution extensively and establishes causality. Even if Russia’s de facto agents who killed Litvinenko did not truly exercise effective control over him, they controlled his life and caused his death. It is understandable that the Court, in a very legitimate effort to defend and give the impression of continuity in its case law reiterates effective control (paras. 125 - 126) and strives to give a flare of a certain type of control exercised by the respondent as the dominant criterion underpinning extraterritoriality. It is, therefore, in a sense unsurprising that the Court holds in Carter that causing Litvinenko’s death is the result of the exercise by the Russian agents “of physical power and control over [Litvinenko’s] life in a manner sufficient to establish a jurisdictional link” (para. 170). Control thus remains in place as a criterion. Yet, one must not lose sight of the fact that the crucial point here is not control over a person, but over his life, thus, causality in the framework of negative obligations. The Russian agents’ conduct is directly attributable to (i.e., caused by) Russia. The Court in Carter may be playing with words to disguise causality as control exercised by (the) Russia(n agents) over the direct victim’s life in a situation of proximate targeting (paras. 150, 158, and 161, whatever these terms may mean), but what truly matters for holding Russia responsible for a human rights wrong outside of its territory is that this wrong is imputable to/directly caused by it.


Is Carter signalling a concealed (as a Court of the calibre of the ECtHR ought to do to safeguard its reputation and legitimacy) departure from its former casuistic effective control case law and a turn towards ‘cause-and-effect’ through control/power over the enjoyment of the right to life? Our reading is that, yes, this is what the Court is covertly and dexterously doing. Carter is pointing in the direction of ‘cause-and-effect’. Yet, as is always the case, when it comes to the interpretation of the intention of judges or to what one should discern when reading between the lines of a judgment, we may be construing things here that we very much wish to read; in different words, we must admit that we might be taking here our desires as facts and confusing the Court’s lex lata with our lex ferenda. We very much hope that this is not the case, and that future (Grand Chamber) ECtHR case law will continue deconstructing effective control as a precondition for extraterritorial negative human rights obligations, whilst also moving to the direction of ‘cause-and-effect’ as a means to safeguard “the effectiveness of the Convention both as a guardian of human rights and as a guarantor of peace, stability and the rule of law in Europe” (Carter, para. 128). Even if this was eventually to be done only with respect to some of the most important human rights, such as the right to life or the prohibition of torture, and not with regard to all ECHR rights, this would be a very positive advancement. Carter is a very positive development; a most welcome addition to the long tail of ECtHR case law on extraterritoriality.


Indeed, we have every reason to celebrate because, with Carter, a state that directly caused extrajudicial death overseas has been found liable by the human rights Court of Europe in a case where this state essentially did not exercise any manifest effective control over the territory at issue or the direct victim. Carter may be nominally maintaining some type of control as a precondition for extraterritorial negative human rights obligations, but it is drastically contributing into turning the Banković effective control criterion into an empty shell of a legal ghost from the past. Causality may now be seen as an emerging supporting protagonist in case of extraterritorial negative human rights violations, turning (effective) control into a false protagonist. Alleluia!


Monday 8 November 2021

New Book: Responsive Human Rights - Vulnerability, Ill-treatment and the ECtHR

Corina Heri (University of Zurich) has published a book titled Responsive Human Rights: Vulnerability, Ill-treatment and the ECtHR (Hart, Bloomsbury Publishing). The book is available in open access here.

Here is the abstract of the book:

"Who is a vulnerable person in human rights law?

This important book assesses the treatment of vulnerability by the European Court of Human Rights, an area that has been surprisingly under explored by European human rights law to date. It explores legal-philosophical understandings of the topic, providing a theoretical framework that can be used when examining the question. Not confining itself to the abstract, however, it provides a bridge from the theoretical to the practical by undertaking a comprehensive examination of the Court's approach under art. 3 ECHR. It also pays particular attention to the concept of human dignity."

Friday 22 October 2021

40 Years Dudgeon Judgment

Today, it is exactly 40 years since the issuing of the famous Dudgeon v the United Kingdom by the European Court of Human Rights. To mark the occasion of this landmark judgment, the Council of Europe has published a video and an article which looks back on the judgment and its impact since on LGBTI persons. According to the press release:

'The video includes interviews with Jeffrey Dudgeon, the applicant in the case, LGBTI rights advocates, Brian Gilmore, Richard Kennedy and Douglas Sobey, Head of Litigation with ILGA Europe, Arpi Avetisyan, the British judge at the European Court of Human Rights, Tim Eicke, and the Head of the Council of Europe’s Sexual Orientation and Gender Identity Unit, Eleni Tsetsekou. They explain the background to the case, the position taken by the European Court of Human Rights and the importance of the judgment in helping to influence international standards and national legislation on LGBTI issues, as well as wider perceptions of homosexuality and gender identity.'

An important testimony of history and on how landmark cases can influence subsequent developments. And a rare opportunity to hear and see a 'famous'. ECtHR applicant speak.

Friday 15 October 2021

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:


* 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'


* 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'

Friday 8 October 2021

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.'

Monday 27 September 2021

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.'

Tuesday 14 September 2021

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.