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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 lisa.heschl@uni-graz.at.

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

For further information on the European Yearbook on Human Rights see https://intersentia.com/en/european-yearbook-on-human-rights-2021-49213.html

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)
 
 
Introduction 
 
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:

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'

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.

Friday, 10 September 2021

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."

Monday, 6 September 2021

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:

Wednesday, 1 September 2021

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!

Monday, 23 August 2021

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.