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

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).

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.'

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.

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.'