Information Hub on ECHR Implementation for NHRIs

ENNHRI, The European Network of National Human Rights Institutions, has this week launched a dedicated information hub on its website on the implementation of judgments of the European Court of Human Rights. Although geared towards NHRIs, the information is of much wider interest and of use to anyone working on ECHR implementation. It is a central node bringing together implementation information from the Council of Europe itself, from ENNHRI and from EIN (the European Implementation Network). Very proud that one of my PhD researchers contributed to the work of ENNHRI on pulling these information resources together. This is the abstract of the information hub:

'To support and guide NHRIs in their efforts to work on the execution of ECtHR judgments, this interactive hub compiles existing resources and tools on ECtHR implementation as well as available key lessons learned and existing NHRI good practices. The information hub illustrates how NHRI efforts on ECtHR implementation can work as a continuing cycle where outcomes of national efforts to promote implementation of Court judgments can be used in international advocacy efforts, the outcomes of which can strengthen subsequent national efforts. It provides key examples of NHRI activities, coupled with relevant resources and tools.'

Online ERA Seminar on the Newest ECtHR Freedom of Expression Case-law

On 27 and 28 May, the European Law Academy (ERA) is organising another of its online seminars for legal practitioners on the newest case-law of the European Court of Human Rights on freedom of expression. A great opportunity to hear about the latest developments from experts, including from the Court's registry and judges themselves! Happy to be part of it. This is what the training entails:

'This seminar will provide participants with a comprehensive insight into the recent case law of the European Court of Human Rights (ECtHR) on freedom of expression under Article 10 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), with a focus on the most important judgments since 2020. The training will provide the participants with the necessary tools to identify and address human rights violations relating to Article 10 and apply that provision in domestic proceedings.'

The full programme is as follows:

Thursday, 27 May 2021

13:00 Getting familiar with the online platform and ice-breaking exercise

13:20 Welcome and introduction

Sanja Jovičić

I. THE ESSENCE OF FREEDOM OF EXPRESSION

13:30 Foreseeability of the law limiting political expression

• Comparison between the ECHR and other international standards

• Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, 22 December 2020

• Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, 20 January 2020

Ivana Jelić

14:00 Discussion

14:15 Short break

14:25 How to ensure the fairness of proceedings concerning Art. 10 ECHR interferences?

Hatice Çoban v. Turkey, no. 36226/11, 29 October 2019

Daniel Rietiker

14:55 Discussion

15:10 Short break

II. BALANCING FREEDOM OF EXPRESSION WITH OTHER HUMAN RIGHTS

15:20 Balancing freedom of expression against the protection of one’s reputation

• Journalists: Gheorghe-Florin Popescu v. Romania, no. 79671/13, 12 January 2021

• Political figures: Kılıçdaroğlu v. Turkey, no. 16558/18, 27 October 2020

• Private companies: OOO Regnum v. Russia, no. 22649/08, 8 September 2020

Diana-Olivia Hatneanu

15:50 Discussion

16:00 Short break

16:10 Private life v. freedom of expression

• Defamation: Miljević v. Croatia, no. 68317/13, 25 June 2020

• Public figures and discriminatory statements against minority groups:

Budinova and Chaprazov v. Bulgaria, no. 12567/13, 16 February 2021; Behar and Gutman v. Bulgaria, no. 29335/13, 16 February 2021

Kirill Belogubets

16:40 Discussion

17:00 End of first seminar day

Friday, 28 May 2021

9:00 Connecting to the online platform

III. SPECIAL CASES

9:30 Free flow of information on the internet

• Vladimir Kharitonov v. Russia, OOO Flavus and Others v. Russia, Bulgakov v. Russia and Engels v. Russia

• Pendov v. Bulgaria, no. 44229/11, 26 March 2020

Antoine Buyse

10:00 Discussion

10:15 Short break

10:25 Incitement to hatred and violence – how to analyse the relevant statements?

• Altintaş v. Turkey, no. 50495/08, 10 March 2020

Ali Bozkaya

10:55 Discussion

11:10 Short break

11:20 Exercising freedom of expression in professional life

• Whistleblowers – Herbai v. Hungary, no. 11608/15, 5 November 2019

• Judiciary – Goryaynova v. Ukraine, no. 41752/09, 8 October 2020; Panioglu v. Romania, no. 33794/14, 8 December 2020, Guz v. Poland, no. 965/12, 15 October 2020

Raluca Stancescu-Cojocaru

11:50 Discussion

12:05 Short break

IV. PRACTICAL TIPS

12:15 How to submit a case successfully to the ECtHR

• Admissibility criteria

• Interim measures

Sanja Jovičić

12:45 Discussion

13:00 End of seminar

You can register here.

New Book on The Court - Current Challenges in Historical Perspective

Helmut Philipp Aust (Freie Universität Berlin) and Esra Demir-Gürsel (Humboldt-Universität zu Berlin) have co-edited a new book entitled The European Court of Human Rights - Current Challenges in Historical Perspective, with Edward Elgar Publishers. It is a collection of contributions from a wide range of leading ECHR scholars. This is the abstract:

'This insightful book considers how the European Court of Human Rights (ECHR) is faced with numerous challenges which emanate from authoritarian and populist tendencies arising across its member states. It argues that it is now time to reassess how the ECHR responds to such challenges to the protection of human rights in the light of its historical origins.

Written by a group of established and emerging experts from diverse backgrounds, this book offers a fresh perspective on the questions and challenges facing the ECHR, bringing together different, and thus far isolated, strands of academic and political debate. Contributions combine historiographical insights with explorations of the current and pressing need for the ECHR to find a role for itself, especially in an environment where there is increased scepticism towards the idea of human rights protection. In particular, the critical conception of the Convention as an ‘alarm bell mechanism’ is examined and assessed in relation to its original goal to prevent authoritarian backsliding.

The European Court of Human Rights: Current Challenges in Historical Perspective will be an important source of reference to academic researchers and students with an interest in human rights, international law and the law and politics of international organisations. It will also appeal to policymakers and legal practitioners due to its examination of pertinent legal and political issues that challenge international organisations.'

And this is the table of contents:

1 Introduction: The European Court of Human Rights – the past in the present, Helmut Philipp Aust

PART I CURRENT CHALLENGES OF THE COURT

2 From boom to backlash? The European Court of Human Rights and the transformation of Europe, Mikael Rask Madsen

3 Principled resistance to the European Court of Human Rights and its case law: a comparative assessment, Marten Breuer

4 Can Strasbourg be replicated at a global level? A view from Geneva, Yuval Shany

PART II HISTORICAL PERSPECTIVES ON CURRENT CHALLENGES: THE DRAFTING HISTORY IN CONTEXT

5 The European Convention on Human Rights and postwar history: why origins matter, Marco Duranti

6 For the sake of unity: the drafting history of the European Convention on Human Rights and its current relevance, Esra Demir-Gürsel

7 Asylum and immigration under the European Convention on Human Rights – an exclusive universality?, Prisca Feihle

PART III HISTORIES AS CASES AND IN THE CASES

8 History as an afterthought: the (re)discovery of Article 18 in the case law of the European Court of Human Rights, Bașak Çalı and Kristina Hatas

9 Rethinking effectiveness: authoritarianism, state violence and the limits of the European Court of Human Rights, Dilek Kurban

10 ‘Never Again’ as a cornerstone of the Strasbourg system: the traces of the Holocaust in the jurisprudence of the European Court of Human Rights, Aleksandra Gliszczyńska-Grabias

11 Historical truth before the European Court of Human Rights, Björnstjern Baade

12 The limits of the European Court of Human Rights vis-à-vis contestation and authoritarianism: concluding observations, Esra Demir-Gürsel

Workshop on the Execution of the Court's Judgments

In the context of the German Presidency of the Council of Europe's Committee of Ministers, the German Federal Ministry of Justice and Consumer Protection, the Centre for Fundamental Rights at the Hertie School and Middlesex University, are organising a workshop this Friday 30 April, entitled 'Execution of the Judgments of the European Court of Human Rights: Taking stock and thinking forward'. This is what the workshop is about according to the organisers:

'This workshop brings together academics, government agents, members of national human rights institutions, Council of Europe staff, and the members of civil society, who work on the implementation of human rights judgments, to take stock of the challenges of implementing European Court of Human Rights judgments. It will focus in particular on the challenges posed by delayed execution, deficient execution, and resistance to execution. It will review the barriers to execution as well as the best practices for attaining execution, and investigate the ways in which the execution of human rights judgments can be made more effective domestically and at the level of the Council of Europe.'

The full programme is available and registration can be done here.

Two New EIN Publications for NGOs on ECtHR Judgment Implementation

The European Implementation Network (EIN) this month published two new documents aimed at aiding civil society organisations to further the implementation of judgments of the European Court of Human Rights. The first relates to the creation of so-called national Implementation Hubs, in which NGOs can cooperate, complement eahc other's strategies and share the burden of the work (available in English, Romanian and Russian). This is the abstract: 

'As recognition of the importance of ECtHR implementation grows, EIN members and partners are leading the way in turning that attention into effective civil society action. However, it is usually impossible for a single organisation to carry out all of the civil society work on ECtHR implementation which would be desired in each country. The ECtHR implementation challenge is significant - with an average of 26 leading cases pending in each Council of Europe member state, each representing a structural and/or systemic human rights problem. It is usually impossible for a single organisation to cover all of the cases pending for their country. 

Creating a national “implementation hub” can help share the burden of implementation work. Implementation hubs carry out a wide range of activities to improve the engagement of civil society with the implementation of ECtHR judgments, as well as improve the authorities’ approach to ECtHR implementation as a whole.' 

The second publication is entitled Holding Governments Accountable for Their ECtHR Implementation Record (available in English). This is the abstract:

'EIN has produced a new resource on how NGOs can report on the implementation record of their country, to encourage governments to engage positively with the implementation process. Putting relevant government authorities face to face with data that accurately reflect their implementation record is the primary starting point for holding them accountable.

Key indicators of a country’s capacity to fully implement judgments of the European Court of Human Rights include:

• The overall number of leading cases pending;
• The proportion of leading cases pending; and
• The average time leading cases have been pending. 

This guide also looks at how awareness about states’ ECtHR implementation records can be promoted through different types of advocacy activities, and how these activities can also inform the creation and efforts of domestic implementation oversight mechanisms. 

The implementation of ECtHR judgments is a long-term process. Often, cases go inactive, and sometimes they are not sufficiently or seriously engaged with by the authorities. In other cases, we see a lack of immediate response to time-sensitive issues. We hope this guide will help enhance ECtHR implementation, by helping civil society motivate governments to address their track record.'

Protocol 15 Ratified by all Contracting Parties to the ECHR

As of 21 April 2021, all Contracting Parties to the ECHR have ratified Protocol 15. It will enter into force on 1 August 2021. The Protocol was adopted in 2013, so it took eight years for all States to ratify it. Italy was the last State to complete the ratification process of the new protocol.

Protocol 15 introduces important changes to the Convention system. These changes, in brief

– add a reference to the principle of subsidiarity and the doctrine of the margin of appreciation to the Preamble of the Convention;

– shorten from six to four months the time limit within which an application must be made to the Court;

– amend the ‘significant disadvantage’ admissibility criterion to remove the second safeguard preventing rejection of an application that has not been duly considered by a domestic tribunal;

– remove the right of the parties to a case to object to relinquishment of jurisdiction over it by a Chamber in favour of the Grand Chamber; and

– replace the upper age limit for judges by a requirement that candidates for the post of judge be less than 65 years of age at the date by which the list of candidates has been requested by the Parliamentary Assembly.

The Explanatory Report and the Opinion of the Court on Protocol 15 can be found here and here.

Protocol 15 is seen as part of the reform of the Court. Reform, however, means changing things for good. A question remains who benefits from these changes. While the Court’s efficacy may be enhanced through the new institutional and procedural changes brought by the new protocol, and States may feel more ensured with the new reference to subsidiarity and margin of appreciation, one may argue that victims of human rights violations are the least direct beneficiaries of this change taking into account that, among others, it further limits their time to lodge a complaint before the Court.

Frédéric Krenc Elected New Judge in Respect of Belgium

Yesterday, the Parliamentary Assembly of the Council of Europe (PACE) elected Frédéric Krenc as the new judge in respect of Belgium. Mr Krencs was elected by absolute majority, right away in the first round, receiving 148 of 262 votes. 

Mr Krenc is a practising lawyer from Brussels - and thus a relatively rare choice as most judges in the European Court either come from judicial practice or from academia. Next to a distinct expertise in sports law, he is very well-versed in human rights. In fact, in his studies already he did research about a still living issue: 'to what extent are EU Member States liable under the European Convention on Human Rights for actions by the European Union?'. Since 2014, he has also been the editor-in-chief of one of the leading French-language journals on human rights, the Revue trimestrielle des droits de l’homme. He can truly be said to actively have committed himself to the further increase of ECHR knowledge among his fellow practising lawyers, both in his function of Secretary General of the Human Rights Institute of the Brussels Bar as well as in advising and training lawyers on the ECHR. He has organised numerous academic and professional seminars on the ECHR as well as published articles on the subject and knows a number of his future colleagues from those activities. He has been a visiting lecturer at various universities and also has judicial experience acting as a judge-arbitrator at the Belgian Court of Arbitration for Sport. And finally, and very significantly, he has extensive experience in bringing human rights cases to international institutions, including the Court of Justice of the European Union, the United Nationans Human Rights Committee and, most notable, he has brought and participated in over 200 cases at the European Court of Human Rights. A truly multi-faceted expert who can bring all that experience to bear in Strasbourg.

After a selection process at the national level in which a specially composed selection board interviewed 18 candidates, it selected those most fitting, amongst others, criteria like 'their specialist qualities, as evidenced by practical experience of human rights law, a university education, research and/or works published, and personal commitment to the values embodied in the European Convention on Human Rights.' After this selection, the Belgian government put forward a list of three candidates to PACE: a legal adviser from an NGO, a professor and a practising lawyer. In what could be called a typically Belgian weighing of the interests of the different communities and constituencies, this time the three candidates put forward have, as noted in the press, French as their first language (whereas it was Flemish the last time round). Mr Krenc speaks both French, Dutch and English it should be noted. 

The selection may have led to a smooth sailing in Strasbourg, with the plenary Assembly in the first round confirming the recommendation by its own committee, in Belgium itself the choice was more contentious. The currently governing and often-called 'Vivaldi' coalition, consisting of four different political party ideologies (thus the reference to Vivaldi and his Four Seasons) was perceived to innovate. In the Belgian press it was noted that the government was submitting a list with three specialists, who were relatively progressive and young, to Strasbourg. Especially the latter was noted as a clear break with the past, as thus far most judges elected in respect of Belgium in Strasbourg were quite experienced national senior judges. This may fit with the image the relatively new Belgian government itself wants to convey. Maybe not surprisingly, this drew criticism from more conservative circles in Belgium, where - quite outrageously - even the fact that the government put forward a list in which the majority of candidates were women was seen as political; a sad comment in the 21st century to qualify that as a negative!

He will succeed the current and very esteemed judge Paul Lemmens, who currently also heads one of the Sections of the Court. As judge Lemmens' term of 9 years started on 13 September 2012, Mr Krenc will succeed him starting on 13 September of this year. Good luck to the new judge!

On a different note, PACE has sent back the list of three candidates put forward by Poland.

ECHR MOOC Starts Again on 4 May

Utrecht University's free Massive Open Online Course (MOOC) on the ECHR is starting again on 4 May 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:

PACE Meeting on Navalny, Covid-19 Vaccination, Election of ECtHR Judges and More

From 19-22 April 2021, the Parliamentary Assembly of the Council of Europe (PACE) will meet to discuss a number of urgent issues. 

The following items in the agenda are relevant for the the Convention system as a whole:

- The arrest and detention of Alexei Navalny in January 2021

- The functioning of democratic institutions in Turkey

- Covid passports or certificates: protection of fundamental rights and legal implications

- Armenian prisoners of war, other captives and displaced persons

- Covid-19 vaccination certificates: how to protect public health and human rights?

- Russian threat to the pursuit of peace in Europe

In addition, PACE will vote on the election of the judge in respect of Belgium. The three candidates in respect of Begium include Ms Maïté de Rue, Mr Frédéric Krenc, and Ms Sylvie Sarolea.

PACE will also discuss a number of other important topics, and will feature, among others, a speech by Angela Merkel, the chancellor of Germany.

PACE meeting starts today at 11:30, and will be streamed live here.

New Book on European Consensus between Strategy and Principle

Jens T. Theilen has published with Nomos a book titled European Consensus between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication. The book is open access and can be downloaded for free here.

Here is a short abstract of the book:

'This study offers a critical account of the reasoning employed by the European Court of Human Rights, particularly its references to European consensus. Based on an in-depth analysis of the Court’s case-law against the backdrop of human rights theory, it will be of interest to both practitioners and theorists.

While European consensus is often understood as providing an objective benchmark within the Court’s reasoning, this study argues to the contrary that it forms part of the very structures of argument that render human rights law indeterminate. It suggests that foregrounding consensus and the Court’s legitimacy serves to entrench the status quo and puts forward novel ways of approaching human rights to enable social transformation.'

Webinar on the European Court of Human Rights: Navigating Turbulent Relationships with States

On 14 April 2021, the Garden Court North Chambers in association with the University of Manchester and the Accountability Unit are hosting a webinar on the European Court of Human Rights: Navigating Turbulent Relationships with States.

Here is the description and programme of the webinar provided by the organisers:

'This webinar will focus on the European Court of Human Rights, which is currently under intense scrutiny as are human rights generally. From Britain in the West to Russia in the East previously unchallenged international laws and norms are being contested. Turkey’s relationship with the Court, arguably, personifies and encapsulates the challenges for the Court and the consequences for victims of rights violations. Is there a balance to be struck and how might it be achieved? What are the implications for other States? Are there more radical solutions?

The webinar will be chaired by Leto Cariolou, Associate Member of Garden Court North Chambers and hosted by Işıl Aral from Manchester University’s International Law Centre who together with our panel of speakers will talk focus on the relationship between the European Court of Human Rights and Turkey. They will also address the Court’s response to the emergency measures adopted in Turkey following the coup of 15 July 2016 that tried to seize power and overthrow President Erdogan.

Speakers

Michael Ivers QC – Barrister, Garden Court Chambers, London – will provide an analysis of the Court’s case law in the context of national emergencies and the difficult considerations it faces.

Ezgi Basaran – Journalist Radikal Newspaper; Research Associate, University of Oxford – will present on the magnitude of the emergency measures in Turkey, the impact of the measures on ordinary people and, in particular, on press freedoms.

Hasan Bakirci – Deputy Registrar, Section II, European Court of Human Rights – will discuss the challenges the Court faces and the particular difficulties in respect of the situation in Turkey today.

Clare Ovey – Head of Department of Execution of Judgments of the European Court of Human Rights, Council of Europe – will present on what happens after a judgment. How are decisions enforced and what challenges are faced in the execution of the Court’s judgments.'

The registration form is here.

ESIL & iCourts Conference on the European Court of Human Rights

The interests groups on International Courts and Tribunals and International Human Rights Law of the European Society of International Law (ESIL) are co-organising with the iCourts Centre of Excellence at the University of Copenhagen the online conference 'The Influence, Legacy and Future of the European Court of Human Rights in the International Legal Order'. It will be held on 8 June 2021. This is the summary of the event in the organisers' words:

'This year the European Convention of Human Rights celebrates 70 years since its adoption. The European Court of Human Rights – the body responsible for enforcing the Convention across 47 Member States of the Council of Europe – is regarded as one of the most successful and impactful international courts. The Court has played a major role in interpreting and clarifying the text of the Convention and in positioning the Convention in the domestic legal orders of Member States. Yet, the Court’s case law has also importantly influenced other regional and international courts and tribunals, specifically the interpretation of international criminal law, humanitarian law, the law of immunity, migration and refugee law as well as opened up challenges posed by conflicting obligations arising from other international treaties. Against this background, the online webinar will explore the influence, legacy and future of the European Court of Human Rights in the wider international legal order.'

And here is the full programme:

Keynote Address (9.30 – 10.15 AM (all times CET))

Professor Mikael Rask Madsen, Director of iCourts, Centre of Excellence for International Courts, University of Copenhagen, 'The Narrowing of the European Court of Human Rights: Legal Diplomacy, Situational Self-Restraint and the New Vision of the Court'

Panel 1 - ‘Strasbourg on the international plane’ (10.30 -12.30 PM) 

Evangelia Vasalou, Research assistant at the Fondation René Cassin, International Institute of Human Rights, 'Cultural identity in the case-law of international human rights courts – Convergences and divergences'

Dr Zena Prodromou, Senior Associate, Quinn Emanuel Urquhart & Sullivan LLP, 'The Influence of the ECHR on the Jurisprudence of International Courts and Tribunals Applying Exceptions Provisions for the Protection of the Public Order'

Dr Cornelia Klocker and Deborah Casalin, Postdoctoral Fellow, University of Konstanz, Phd Candidate at Antwerp University 'The ECtHR, Discrimination and Conflict : Exploring CERD as an Alternative Forum'

Gustavo Minervini, PhD Candidate in International Law, University of Naples, 'The Influence of the Jurisprudence of the ECtHR on the Interpretation of Core International Crimes by International Courts and Tribunals'

Panel 2 - ‘Strasbourg and the EU’ (13.30-15.00 PM)

Jesse Claassen, Assistant Professor of European Law, Open University of the Netherlands, The ECtHR’s Position Within the EU Legal Order : The Domestic Courts’ Perspective

Dr Tamas Molnar, Legal Research Officer, EU Fundamental Rights Agency, 'The Impact of the ECtHR case-law on the CJEU interpreting the EU’s return acquis : more than what you first see ?'

Janja Simentić Popović, University of Belgrade, 'Patterns in the usage of the ECtHR Jurisprudence by the CJEU in the field of Asylum'

Panel 3 - ‘What Strasbourg has to offer’ (15.15-17.15 PM)

Professors Larry Helfer and Clare Ryan, Duke University School of Law; LSU Paul M. Hebert Law Center, 'Contesting LGBT Rights in International Courts: The role of the ECtHR'

Dr Maria Variaki, Lecturer in international law at the War Studies Department, King's College London, 'The so-called intellectuals and human rights activists'

Dr Cristina Teleki, University of Bern, 'The European Court of Human Rights – Center Stage in the Conversation on Bigness?'

Silvia Steininger, Research Fellow, MPI Heidelberg, 'Talking to Strangers ? Outreach and Communication Practices of the ECHR'

Closing Remarks (17.15 PM)

You can register here.