Tuesday, 14 June 2022

Invoking Subsidiarity to Weaken ECHR Protection in the UK

Guest post by Katie Lines


For many months now, the United Kingdom’s Government has been solidifying plans to drastically change the country’s human rights framework in a manner that could jeopardise its continued membership of the Council of Europe. On 10 May, the Government confirmed its intention to introduce a new Bill of Rights, with the aim of “curbing the incremental expansion of a rights culture” and restoring “some common sense to the [UK’s] justice system”. The proposed Bill of Rights would replace the current legislation that gives effect to the European Convention on Human Rights (“ECHR”) in UK law, the Human Rights Act 1998. 

This blog post looks at one aspect of the rationale used to justify the Government’s plans for change: the principle of subsidiarity. It argues that, in the name of fostering subsidiarity, the UK’s plans for change would partially dismantle the domestic mechanisms that promote it, and would significantly weaken ECHR protection in the UK.
Subsidiarity UK-style?
The Government outlined its plans for change in a consultation document that was published in December 2021, in which views were sought on a number of options for reform. The Government’s principal aims, as set out in the consultation document, include reducing the influence of the European Court of Human Rights (“ECtHR”) on UK law, affirming the supremacy of the UK Parliament in the face of adverse Strasbourg rulings, and restricting the extent to which individuals who have not “respected the rights of others” can make use of human rights claims and remedies. The Government intends for the UK to remain party to the ECHR, but if the Bill of Rights is enacted in line with the Government’s most far reaching proposals, then the UK would inevitably be placed in breach of its obligations under the Convention. 

Throughout the consultation document, the Government uses the twin principles of subsidiarity and the margin of appreciation to justify its plans for change. The document expresses a narrow view of these principles, mostly portraying them as devices to constrain the Strasbourg Court and protect against overreach. Subsidiarity is described as the Strasbourg Court’s “doctrine of self-restraint” which entitles State Parties to “push back” by taking a different stance from the Court, especially where “there is a democratic mandate on a contentious issue of public policy”. Likewise, the margin of appreciation is portrayed as something that States can claim for themselves to keep Strasbourg at bay, with the consultation document noting that States are able to “assert the margin of appreciation over matters which, particularly in a mature liberal democracy, should be left to national courts and elected legislatures”. 

The Government’s plans are described as “an opportunity” to make use of the Strasbourg Court’s commitment to an “increased margin of appreciation” and enhanced recognition of the principle of subsidiarity, following the Brighton Declaration and the coming into force of Protocol 15 in August 2021. The proposed Bill of Rights will “reflect, support and encourage” an increased focus on the subsidiarity principle by “enhancing Parliament’s role”, which includes allowing Parliament to have “the last word” on how to respond to adverse rulings from Strasbourg. 
Subsidiarity from an ECHR perspective 

The Strasbourg Court has recognised its subsidiary nature since the early years of the Convention system. However, the notion of subsidiarity expressed in the consultation document – as a tool State Parties can invoke to place limits on the Court – first became prominent with the 2012 Brighton Declaration. Although many states have pushed back against this was of framing the issue, the UK is not the only State Party to use subsidiarity as a vehicle to critique the alleged overreach of the ECtHR. For example, when Denmark assumed chairmanship of the Council of Europe in 2017, thecountry’s priorities included promoting “the need to take into account the principle of subsidiarity and its functional tool, the margin of appreciation”, in light of “challenges resulting from the fact that the European Court of Human Rights, through its judgments, increasingly has influence on policy areas of critical important to member States and their populations”. 

However, the ECtHR’s conception of the subsidiarity principle, as expressed in its case law, is more nuanced. Dean Spielmann, former President of the ECtHR, has explained that the Convention should not be seen as subsidiary “to State authorities in a broad or general way on traditional sovereignty grounds. Rather, the Convention mechanism is subsidiary to the national systems safeguarding human rights.” As such, subsidiarity requires domestic authorities to establish a national system which implements the Convention effectively. The Strasbourg Court is subsidiary in that it will take a supervisory role and only intervene when national authorities fail in their primary responsibility. 

Therefore, subsidiarity places obligations on state parties, as well as granting them a margin of appreciation to decide how Convention rights may best be implemented. If states want to use the subsidiarity principle to keep the Strasbourg Court at arm’s length, then they must ensure that Convention rights and case law are properly considered in domestic policy making, during the legislative scrutiny process, and when cases are brought before domestic courts. This means that national governments, parliaments, and courts must follow practices and procedures that are designed to secure Convention rights and freedoms, and must provide an effective remedy when those rights and freedoms are violated. The subsidiarity principle is therefore intended to strengthen, not weaken, states parties’ responsibility for protecting Convention rights.

The Government’s consultation document, however, frequently invokes subsidiarity as a rationale for avoiding the obligations placed on the UK under the Convention system. This is ironic given that one of the Government’s main critiques of the Human Rights Act 1998 is that it has apparently led to “a culture of rights” decoupled from responsibilities, and the Government plans to use the Bill of Rights to emphasise “the role of responsibilities within the human rights framework”. 
The UK’s record in Strasbourg 

Since the Interlaken Conference/Declaration of 2010 – where State Parties firmly called for a strengthening of the subsidiarity principle – there has been a general growth in the Strasbourg Court’s reference to the margin of appreciation. At the same time, there has been a relatively drastic decline in the number of cases lost by the UK. For example, in the five years leading up to the Interlaken Conference, 2006-2010, the UK lost 84 cases before the ECtHR. In the next five years, 2011-2015, it lost only 34. There are a number of possible explanations for this decline, but the Court’s increased use of the subsidiarity doctrine is likely to be a meaningful factor. Before 2010, the UK successfully defended less than 40% of cases where the margin of appreciation was invoked before the Court, but as of 2021, that percentage had risen to over 50%. Only two countries in the Council of Europe (Denmark and Sweden) successfully defend a higher percentage of margin of appreciation cases.

The UK’s success in defending margin of appreciation cases can likely be explained partly because, as part of the Court’s turn towards subsidiarity, the Court seems to give greater respect to decisions of domestic institutions in countries where there is a strong procedural embedding of the Convention. 

The current Human Rights Act

In the UK, the Human Rights Act 1998 ensures that Convention rights are properly considered and protected domestically, and the country has been described as “a model in terms of subsidiarity thanks to the Human Rights Act”. To take three examples of how the current Act embeds the principle of subsidiarity:

(1)  Section 2 of the Human Rights Act requires UK courts to “take into account” Strasbourg case law.

(2)  Section 3 imposes a strong interpretative obligation for courts to read and give effect to domestic legislation in a way which is compatible with the Convention rights, so far as it is possible to do so. 
(3)  Section 19 requires all Government Bills brought before Parliament to be accompanied by a ministerial statement confirming that the Bill’s provisions are compatible with the Convention, or stating the minister’s intention to proceed with a Bill that is likely to be incompatible. Where a Bill raises significant compatibility issues, the Government also publishes an ECHR memorandum as a matter of best practice. This memorandum contains an analysis of the Bill’s provisions that engage Convention rights, and why the Government believes the provisions are compatible with those rights. 
The proposed Bill of Rights

The proposed Bill of Rights will severely weaken domestic procedures for securing Convention rights. To take the three examples in the previous paragraph: 

(1)  The Government intends to remove the requirement in section 2 of the Human Rights Act for UK courts to “take into account” Strasbourg case law. Instead, the consultation document proposes inserting a clause in the new Bill of Rights that permits (but does not require) a domestic court to consider relevant case law from the Strasbourg Court, while also stating that domestic courts are “not required to follow or apply any judgment or other decision of the European Court of Human Rights”.
(2)  Two possible changes are proposed to the interpretative obligation in section 3 of the Human Rights Act. The first is simply repealing section 3, so that domestic courts are no longer required to read and give effect to domestic legislation in a way which is compatible with the Convention rights. The second is replacing section 3 with a provision which permits a court to interpret legislation compatibly with the rights in the Bill of Rights only where there is ambiguity in the legislation, and only if such interpretation “can be done in a manner that is consistent with the wording and overriding purpose of the legislation”.
(3)  The consultation document queries whether the compatibility statements required by section 19 of the Human Rights Act strike the “right constitutional balance between government and Parliament”, or whether they restrict “the space for innovative policies”. The document seeks views on whether there is “a case for change”. 

Therefore, the proposed Bill of Rights will likely undo many of the procedures and doctrines that have been put in place to ensure Convention rights are properly considered by the UK’s Government, Parliament and courts. It may even be partially self-defeating. The principle of subsidiarity will become far less embedded within the domestic legal framework, with the result that the UK may be afforded a far narrower margin of appreciation when defending cases before the Strasbourg Court. This increased scrutiny from Strasbourg will come at a time when it is likely that a growing number of cases from the UK will come before the ECtHR, as a number of options put forward in the consultation document will, if enacted, prevent some people from enforcing their Convention rights domestically. Therefore, the UK is likely to find itself facing an increasing number of adverse judgments from the ECtHR. 
Wider implications for Europe

National authorities and the Strasbourg Court appear at times to have different motivations for invoking subsidiarity and the margin of appreciation. For the Court, the principles are a helpful way to ensure that the Convention becomes embedded domestically, and to reduce its high case load. For some member states however - for instance the UK and Denmark - the principles have been used tools to try and limit the involvement of the Court in domestic matters and protect against fears of overreach. 

Despite these different motivations, the Strasbourg Court’s increased use of the subsidiarity principle since 2010 should in theory benefit both the Court and disillusioned states parties that perceive the Court to be overly interventionist. If states properly embed the Convention, then they can benefit from a greater margin of appreciation, and the Strasbourg Court should see a reduced case load. 

However, the Court’s use of subsidiarity to impose, at least in a number of cases, a light-touch supervision on the UK’s human rights regime appears not to have quelled dissatisfaction with the Court amongst the country’s Conservative Government. In the UK’s case, subsidiarity is now being used as a justification for the country to remain a signatory to the ECHR while dismantling its domestic system for protecting Convention rights. In the long run, such a misuse of subsidiarity is likely to be extremely damaging to the legitimacy of the Convention system as a whole. 
Katie Lines is a Research Fellow with the Bingham Centre for the Rule of Law. Before joining the Bingham Centre, Katie worked as a human rights lawyer with the civil liberties organisation Liberty.

Friday, 20 May 2022

New ECHR Readings

Please find below a new batch of academic readings from the last few months on the European Convention on Human Rights, the European Court of Human Rights and its case-law:

* Paul Gragl, ‘Kant and Strasbourg on Mandatory Vaccinations’, European Convention on Human Rights Law Review 

‘Mandatory vaccination raises important questions of human rights, especially if moral norms are given effect in legal provisions. I argue – assuming the safety and efficacy of vaccines – that we are under a moral obligation to vaccinate. Although Kant himself was hostile towards vaccinations, his Categorical Imperative exhorts us to respect the autonomy and dignity of others, and if these ‘others’ are the most vulnerable members of society who cannot be vaccinated for medical reasons, we can only protect them by vaccinating ourselves. The ECtHR (implicitly) follows this reasoning in its case law, particularly in its most recent relevant decision, in Vavřička, in which it maintained that even though mandatory vaccination interferes with certain Convention rights, this can be justified in terms of social solidarity and the weighing of interests. We consequently see that in this context, the ECHR system is very much in line with Kant’s notion of morality.’

* Liv N. Henningsen, ‘The Emerging Anti-Stereotyping Principle under Article 14 ECHR’, European Convention on Human Rights Law Review
‘Anti-stereotyping as a legal principle is emerging as a transformative device in European human rights law. In this article, the anti-stereotyping principle in the case law of the European Court of Human Rights (ECtHR) is analysed and discussed. The article employs a multidimensional approach to discrimination and theorises a transformative dimension in relation to the stereotyping cases. First, the early cases on stereotyping are analysed in relation to different theoretical concepts. Thereafter, the Morais case is analysed and discussed in relation to the broader case law. It is argued that the anti-stereotyping principle is instituted more authoritatively in this case but requires further theorisation. Moreover, the comparator assessment is less significant in relation to the anti-stereotyping principle. Finally, it is argued that the ECtHR should be more explicit about intersectionality in its discrimination assessments and avoid essentialism. Aspects of case law are critiqued in this respect.’

* Wei Gao, ‘The ECHR in action: its applicability and relevance for arbitration’, International Journal of Human Rights 

‘Right to fair trial under Article 6.1 of the European Convention on Human Rights has significant bearing on arbitration. Under the jurisprudence of the European Court of Human Rights, an arbitral tribunal is a ‘tribunal’ within the meaning of Article 6.1. The rights recognised by Article 6.1 are subject to partial or full waivers in the context of arbitration, depending on its nature being voluntary or mandatory. To satisfy their Convention obligations, contracting States must exercise effective supervisory jurisdiction in arbitration matters. This may be in conflict with the practice in some contracting States of allowing private parties to contract out the rights to seek the setting aside of arbitral awards or enforce awards that have already been set aside. A survey of all Convention cases between 1955 and 2021 in this regard discloses an overall picture of how the Convention applies to arbitration matters.’

Sarah Trotter, ‘Hope’s Relations: A Theory of the ‘Right to Hope’ in European Human Rights Law’, Human Rights Law Review, Vol. 22, Issue 2 (2022)

‘In recent years, the notion of a ‘right to hope’ has emerged in the jurisprudence of the European Court of Human Rights. This article offers an account of how this right has been constructed and of how hope is conceptualised in European human rights law. It examines the origins of the ‘right to hope’, the meaning of hope in this context and the relationship that is depicted between hope and dignity. It argues that hope is conceived of here as relational and that one way of thinking about the right to hope in this sense is as a right to recognition. This has two dimensions: one involving the recognition of the individual by others and another involving the recognition of the individual in and through law. The latter implies a certain relationship of dependency between the individual and European human rights law, with hope itself coming to be constructed as an individual responsibility.’

* Kerstin Bree Carlson and Jacob Livingston Slosser, ‘When Religion Speaks: Denmark’s Face Covering Ban and European Human Rights Law’, Nordic Journal of Human Rights, Vol. 39, 2021, Issue 4 (2022)

‘This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.’

Thursday, 19 May 2022

Kosovo Applies for Council of Europe Membership

Last week, on 12 May 2022, Kosovo has formally applied for membership of the Council of Europe. For many years, this did not seem a possibility because not all CoE member states recognised Kosovo as a state, but with the new geopolitical situation following Russia's invasion of Ukraine and the ousting of Russian Federation from the Council of Europe, the Kosovar government has apparently assessed the time was right to give it a formal try. While this may be an uphill battle (see a reflection here), it will be for sure very noteworthy to follow whether the Council of Europe will again have 47 member states.

The Council of Europe has been working for years with the Kosovar authorities on a wide range of issues (see an overview here) and one could even speak of de facto partial integration into the Council of Europe's work and normative standards. On addition, the ECHR has been part of parcel of the legal order of Kosovo for a long time too, being applied domestically even if Kosovo so far could not ratify it. This leads to the paradoxical situation that ECHR provisions can be used in Kosovar courts but applications to the European Court of Human Rights are not (yet) possible - one could call this an example of domestication before ratifying. The ECHR is thus not an alien document to the Kosovar legal order.

Thursday, 12 May 2022

Webinar on the European Court of Human Rights: Between Law and Anthropology

On 19 May, the Max Planck Institute for Social Anthropology is hosting an online conversation with Professor Jessica Greenberg and Professor Angelika Nußberger on the European Court of Human Rights: Between Law and Anthropology. The event will be moderated by Dr Alice Margaria.
To join the conversation, you can register on this link by 17 May.
Here is the information about the speakers:
Jessica Greenberg is an associate professor of Anthropology at the University of Illinois, Urbana-Champaign. Prior to coming to UIUC, Greenberg was an Academy Scholar at the Harvard Academy for International and Area Studies, and an assistant professor in Communication Studies at Northwestern University. She is the Co-Editor of the Political and Legal Anthropology Review (PoLAR), and is currently working on a book provisionally titled Ghosts in the Machine: Ethnographic perspectives on the European Court of Human Rights.
Angelika Nußberger is professor of international law, public law and comparative law at the University of Cologne and founding director of the Academy for European Human Rights Protection. She also serves as an international judge at the Constitutional Court of Bosnia and Herzegovina, Vice-President of the Venice Commission of the Council of Europe and President of the German Constitutional Lawyers Association (Vereinigung der deutschen Staatsrechtslehrer). She was a judge at the European Court of Human Rights elected on behalf of Germany from January 2011 to December 2019 and its Vice-President from February 2017. She has studied law and literature (German, Russian and French) in Munich, Würzburg, Moscow (1985 study visit) and Boston (visiting researcher at Harvard University 1994/1995). She worked at the Max-Planck-Institute for Foreign and International Social Law in Munich from 1993 to 2002.
Alice Margaria  is a Senior Research Fellow in the Department of Law and Anthropology of the Max Planck Institute for Social Anthropology. Her research interests lie at the intersections of diversity, family law and human rights. Margaria is the author of The Construction of Fatherhood: The Jurisprudence of the European Court of Human Rights (CUP, 2019). She teaches courses on gender and diversity at Free University Berlin, and is currently based at the University of Bayreuth (Germany) as a Bavarian Gender Equality grantee. 

Wednesday, 11 May 2022

Fully Funded PhD Positions on ECHR and Migration

The Amsterdam Centre for Migration and Refugee Law at Vrije Universiteit Amsterdam is offering two fully funded PhD positions to study the ambivalent role of the European Court of Human Rights as an actor and forum for the human rights turn in legal discourses on migration.

The PhD positions will be part of the project entitled “Who is empowered by Strasbourg? Migrants and States before the European Court of Human Rights”. This is one of ten projects which together form the interdisciplinary research group “Human Rights Discourse in Migration Societies” (Menschenrechtsdiskurse in der Migrationsgesellschaft, MeDiMi). The aim of MeDiMi is to determine the scope, forms and consequences of the expansion of human rights discourse in contemporary migration societies.

The doctoral thesis will be designed as a bi-national PhD between the Vrije Universiteit Amsterdam and JLU Giessen (‘co-tutelle’). The PhD researchers will cooperate closely with the project team located at the Amsterdam Centre for Migration and Refugee Law (ACMRL), and be embedded in a cooperative research consortium with MeDiMi partner institutes in Germany.

The application deadline is 1 June. For further information about the call, click here.

Friday, 6 May 2022

Conference on Systemic Non-Implementation of ECtHR Judgments

The European Implementation Network (EIN) is organising a conference entitled 'Systemic Non-Implementation of Judgments of the European Court of Human Rights - What Can Civil Society Do?' on 22 and 23 June in Strasbourg. While geared towards EIN members, other participants are also welcome and can register here. This is the conference's abstract:

'A key threat facing the system of the European Convention on Human Rights is the non-implementation of judgments of the European Court of Human Rights (“ECtHR”). Of the “leading” judgments handed down from the ECtHR in the last ten years – i.e. judgments identifying structural or systemic problems – 47% remain pending implementation. 

Overall, there are 1300 leading ECtHR judgments pending execution – which have been pending for an average of 6 years and 2 months. Every one of these judgments represents a human rights problem which has not been resolved. Their systemic non-implementation represents a threat to European values and the democratic way of life.

The European Implementation Network (“EIN”) is a network of organisations and individuals from across Europe, working towards the full and timely implementation of ECtHR judgments. EIN sees common barriers to effective ECtHR implementation across different states, including: a lack of political will on behalf of governments (either to implement in particular cases, or to implement ECtHR judgments generally); the absence of effective structures at the national level to systematically promote implementation (such as a high-level working group in the executive or a monitoring committee in the parliament); negative public narratives around ECtHR judgments; and a lack of significant international pressure to implement. 

This conference will use presentations and open discussion to highlight the main barriers to ECtHR implementation, identify common solutions, and share the solutions across European civil society. It will include presentations from leading members of the civil society movement to promote ECtHR implementation, as well as high level speakers from the Council of Europe and national governments. 

Proportion of pending leading cases: the darker the shade of red, the worse the country is at addressing human rights issues when these are identified in judgments of the European Court of Human Rights.

A preliminary list of topics of presentations is found further below. However, we also want to hear from you about the presentations that should be made during the event. This is a subject of critical importance to all who care about the ECHR system. We want the conference to feature the very best solutions to the problem of systemic ECtHR non-implementation. 

Call for Proposals

If you would like to propose a topic of presentation for the event, please send a short email to director@einnetwork.org . If you have a shareable solution to the issue of structural non-implementation of ECtHR judgments – or know someone who does – then it is important for European civil society to hear from you.  

Discussion topics 

A draft list of topics to address the systemic non-implementation of judgments of the European Court of Human Rights is set out below. 

These are currently divided into “bottom up” and “top down” approaches. “Bottom up” solutions are actions taken by civil society and others within each state, to promote implementation by authorities at the national level. These may be considered to be the most important. “Top down” solutions are actions taken by civil society to increase pressure by international bodies on national governments to implement ECtHR judgments. 

“Bottom Up” solutions

  • Creating positive narratives about the implementation of ECtHR judgments
  • Promoting the Creation of Structural Systems I: Governmental Working Groups with Civil Society Involvement 
  • Promoting the Creation of Structural Systems II: Parliamentary Monitoring Bodies
  • Monitoring of Structural Systems
  • Bringing Government personnel into direct contact with victims 
  • Promoting ECtHR judgment implementation in the most difficult contexts: including Azerbaijan, Turkey, and Russia 
  • Funding of civil society work in this area

“Top Down” solutions

  • Council of Europe I: increased use of infringement proceedings, or a different way to hold states to account?
  • Council of Europe II: increases to technical co-operation programmes
  • EU Pressure I: inclusion of non-implementation of ECtHR judgments in the EU’s rule of law agenda and dialogue with third countries (including in the EU accession process and in Eastern Partnership relations)'

Thursday, 5 May 2022

Online Book Panel on New ECHR Books

On 8 June 2022 at 16h00 CET, an 
online panel will be organized on “Minimalism vs. Maximalism? Challenges and Future Directions in the Interpretation of the European Convention on Human Rights”, chaired by Professor Eva Brems. It centres on three recent ECHR-related monographs and follows upon an online symposium on the three books over at our colleagues at Strasbourg Observers. One can register for the event on Zoom here. This is the abstract of the event:

'How does, and how should, the European Court of Human Rights interpret and apply the rights protected under the European Convention on Human Rights? The perceived tension between ‘minimalist’ and ‘maximalist’ approaches has remained a focal point in recent developments and debates on the subject. Building on three recently published books which add to, and substantially nuance, these debates, Dr Corina Heri, Dr Natasa Mavronicola and Dr Jens T. Theilen are joined by Professor Eva Brems to reflect on some prominent challenges and potential directions in Strasbourg doctrine in light of and beyond the ‘minimalism-maximalism’ dichotomy. The event follows a symposium hosted by Strasbourg Observers on the three books: 
  • Corina Heri, Responsive Human Rights: Vulnerability, Ill-treatment and the ECtHR (Hart, 2021).
  • Natasa Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart, 2021).
  • Jens T. Theilen, European Consensus between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication (Nomos, 2021).'
Warmly recommended!

Tuesday, 3 May 2022

EIN & DRI Report on Non-Implementation of Judgments of European Courts

Democracy Reporting International and the European Implementation Network (EIN) have published a report on the problems with implementation of both the European Court of Human Rights and the European Court of Justice. The report is entitled 'Justice Delayed and Justice Denied: Non-Implementation of European Courts Judgments and the Rule of Law'. Providing both European trends and comparative analysis, it also provides information per country. In terms of degrees of implementation of judgments of the two courts (both in terms of extent and speed of implementing) the best scoring countries are Luxembourg, The Czech Republic, Denmark and Estonia. At the other end of the range, those with the biggest implementation issues are Bulgaria, Italy, Hungary and as the very worst one: Romania. This is the press release accompanying the report:

'Over the past few years, governments, media and citizens have become increasingly alarmed about the backsliding of fundamental European values. Yet, while the rule of law is becoming an issue of sanctions and hard political controversy, one missing piece of the rule of law puzzle is often overlooked: the non-implementation of judgments of two key European courts, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

The non-implementation of judgments of the European Courts has become a systemic problem. Around 40% of the leading judgments of the ECtHR relating to EU states from the last ten years have not been implemented. Each of these judgments represents a significant or structural problem, often with direct consequences for many citizens. And yet, authorities have not implemented them. 

At the same time, the CJEU is facing increasing contestation. While a certain resistance against the Luxembourg-based court is nothing new, it has increased in recent years, with courts and governments in EU Member States openly challenging the top body of the EU’s judiciary.

To shed more light on these worrying trends, Democracy Reporting International and the European Implementation Network (EIN) published the joint report 'Justice Delayed and Justice Denied: Non-Implementation of European Courts Judgments and the Rule of Law' offering a unique methodology that ranks member states based on three criteria: the number of leading judgments pending implementation, the proportion of leading judgments pending implementation from the last ten years and the average time leading cases have remained unimplemented.'

A recording of the launch event, with representatives from the Council of Europe, European Commission and European Parliament can be found here.

Wednesday, 27 April 2022

Mykola Gnatovskyy Elected New Judge in Respect of Ukraine

On 26 April 2022, the Parliamentary Assembly of the Council of Europe elected Mykola Gnatovskyy as judge to the European Court of Human Rights in respect of Ukraine. His term of of office of nine years will commence 
not later than three months after his election. He will be replacing the current ECtHR Judge Ganna Yudkivska.

Judge Gnatovskyy is professor of law at Taras Shevchenko National University of Kyiv. Between 2015 and 2021 he served as a president of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). He has also advised international institutions, including the OSCE and the International Committee of the Red Cross, on issues of human rights law and international humanitarian law. His and the CV of the two other Ukrainian candidates for the position of ECHR judge can be accessed here.

New Issue ECHR Law Review

The ECHR Law Review has just published online its newest issue (vol. 3. issue 2). It contains an editorial note, book review, notes and articles on such topical issues as the war in Ukraine, inter-State applications, mandatory vaccination, to name a few.

* Kanstantsin Dzehtsiarou and Vassilis P. Tzevelekos, 'The Aggression Against Ukraine and the Effectiveness of Inter-state Cases in Case of War'

* Lucas Lixinski, 'On the Circumscribed and Problematic Resurgence of Inter-State Human Rights Cases'

* Liv N Henningsen, 'The Emerging Anti-Stereotyping Principle under Article 14 ECHR'

* Paul Gragl, 'Kant and Strasbourg on Mandatory Vaccinations'

* Kushtrim Istrefi and Cedric Ryngaert, 'Makuchyaan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life'

Book Review
* Jaka Kukavica, 'Jens T Theilen, European Consensus Between Strategy and Principle: THe Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication'

Friday, 22 April 2022

New Handbook on European Law related to the Right of the Child

In the collaborative series between the European Court of Human Rights and the European Union's Fundamental Rights Agency (FRA), a new updated version has been published in open access of the Handbook on European Law related to the Right of the Child. The compilers describe the handbook as 'a point of reference on both Council of Europe and European Union law related to the protection and promotion of children’s rights in Europe.' The old version was published in 2015 and is still available in no less than 23 Council of Europe languages.

Thursday, 21 April 2022

Sterilization of Transgender People: A Worrying Judgment of the Czech Constitutional Court

By Pavel Doubek*

On 31 March 2022, the Czech Constitutional Court (CC) quashed the constitutional complaint of an applicant who asked to change her birth registration number to align with her gender identity and contested several provisions of Czech law on account of alleged unconstitutionality and incompatibility with the European Convention on Human Rights (ECHR).

The applicant was born as a male but struggled considerably since the male physical identity matched her gender identity of being neither male nor female (non-binary person). In the proceedings before the CC, the applicant wished that a feminine form was used, hence likewise is referred to her in this article. She contested a repetitive rejection to change her birth registration number (currently the male format) into the neutral gender (or at least feminine form). She pleaded unconstitutionality of a statutory provision in the Act on Records of Population (§ 13 para 3) which stipulates the format of a birth registration number.

The crux of her complaint does not lie, however, in the format of the birth registration number but in the statutory requirements for a change of that number. Act on Records of Population (§ 17 para 2 (d)) provides that such administrative change is possible only if a person´s gender is changed. The Civil Code (§ 29 para 1) and the Act on Specific Health Services (§ 21 para 1) further stipulate that the gender could be officially changed, once a person undergoes gender reassignment surgery "while simultaneously disabling the reproductive function and transforming the genitalia" (surgical sterilization).

The applicant disagreed with the obligation to undergo surgical sterilization as it was not deemed necessary. She argued that such requirement violates her constitutional rights, namely the right to private life, physical and psychological integrity and right to be free from torture and ill-treatment under Article 7 of the Czech Charter of Fundamental Rights and Freedoms and Articles 3 and 8 of the European Convention on Human Rights.

The CC´s Deadlock and the Replacement of Justice-Rapporteur

Initially, the CC Justice Kateřina Šimáčková was appointed as the Justice-Rapporteur and tasked to draft the decision for the CC plenum (14 Justices). She proposed to uphold the applicant´s complaint on the account of the unconstitutionality of the Civil Code´s provision (§ 29 para 1, first sentence) and dismiss the remainder of the application. In Šimáčková´s opinion, a requirement of mandatory sterilization failed to satisfy the proportionality principle and violated the applicant´s constitutional rights.

Since Šimáčková´s draft failed to get the support of at least nine Justices (8 voted in favour, 6 against) as required by the Constitutional Court Act (CCA) (§ 13) for declaring a statutory provision unconstitutional, the applicant's petition had to be dismissed. Justice Milada Tomková (one of the six opposing Justices to Šimáčková´s draft) was then appointed as the new Justice-Rapporteur and required to elaborate the reasoning of the dismissing judgment. (para 21)

It is not a surprise that Justice Tomková´s reasoning did not reach the same conclusions as to her predecessor. However, given its stark contrast to the remaining eight Justices´ views, it received strong criticism from seven of them who joined in with dissenting opinions. (pp 15-35) Therefore, it is kind of paradoxical that CC´s judgment reflects the views of a minority of the CC Justices ("the relevant minority") instead of being based on the views of the CC majority. It is so more frustrating when the physical integrity of a person is at stake.

"The Relevant Minority´s" View: Only Males and Females

Despite the applicant pleading unconstitutionality of several statutory provisions, concerning, in principle, the legal impossibility to change her birth registration number and mandatory sterilization as a precondition for that change, the relevant minority did not see her complaint as that complex.

Intriguingly, the relevant minority concluded that the case before it is not about changing one's gender, but instead concerns the format of one's birth registration number. Therefore, the CC refused to carry out a constitutional review of the statutory requirement of the sterilization surgery but paid attention solely to whether the applicant has an arguable claim to ask the State to recognize a „neutral“ birth registration number. (paras 30-33) The relevant minority concluded that: “There is no point in dealing with specific requirements for changing the gender from male to female on the basis of the case of the applicant, who was not born as a woman, does not consider himself to be a woman and has not yet decided if he wants to change gender to a female at all.”(para 31)

The entire Court's reasoning could be then succinctly marked by concerns about recognizing the "third gender", guarding the public order and reassuring that there are only two categories of people - males and females. The latter argument is developed in significant detail and lists a plethora of situations where the "third gender" would be problematic, for example, a separation of men and women for sports activities, separation in prisons, etc. (paras 39-49) The CC concluded that the birth registration number that corresponds to biological gender is needed to satisfy a variety of state functions, hence meeting the constitutional requirements.

It is also remarkable that the relevant minority entirely overlooked applicable ECtHR´s jurisprudence concerning transgenders´ rights by stating tersely that it has “considerable doubts about the transferability of some ECtHR´s gender-related conclusions into the Czech legal order”. (para 61) The CC did neither explain what is the character of these doubts nor what ECtHR´s judgments are inapplicable in the Czech context. Not even judgments expressly invoked by the applicant (paras 7, 16) have been taken into consideration.

The Dissenting Majority Strikes Back: What is the CC´s Role and What is Not

Seven CC Justices demonstrated a strong disagreement with the relevant minority´s reasoning. Not surprisingly, Justice Šimáčková´s dissenting opinion is the most peculiar. Not only for being more extensive than the reasoning itself and applying a significant portion of international legal standards including pivotal ECtHR judgments but mainly for drawing a clear line between which rights should be examined by the CC and which should not. Šimáčková made it clear from the outset that the crux of the case was a statutory duty to undergo mandatory surgery as a requirement for gender change, and not the legal regulation of birth certificate number in itself. In her opinion, it is the former that was applied in the applicant´s case and what should be subjected to constitutional review. (p 18, para 15)

Šimáčková´s dissent did do the job of what one would expect from the CC´s reasoning. Instead of ruminating about diverse public policy issues, it should be the role of the CC to rigorously examine each complaint of the applicant on account of the alleged unconstitutionality (CCA,§ 72 para 1).

Šimáčková underscored that one´s identification with other than original biological gender is intimately linked to a person's private life: “It is a cardinal decision of the individual about oneself, which falls under the guarantee self-determination and the protection of the right to inviolability of privacy.”(p 22, para 28) Furthermore, she went on to argue that an invasive medical intervention does not only violate personal integrity and right to private life but also “treats transgender people as an object and exposes some of them to a choice between intense physical and mental suffering”, hence amounting to inhumane and degrading treatment contrary Article 7 of the Czech Charter of Fundamental Rights and Freedoms and Article 3 of the European Convention on Human Rights. (p 30, paras 60-63)

The other six dissenting Justices criticized likewise the adopted reasoning as well as a deaf ear shown to the Strasbourg Court. Unlike the relevant minority, dissenting Justices underscored explicitly that “the statutory provision in question does not correspond to the ECtHR´s case law.” They went on to argue that while the “relevant minority” has considerable doubts about the transferability of some ECtHR´s judgments into the Czech legal order, “we have no doubts about this transferability and consider the ECtHR case law concerning the interpretation of the Convention to be binding.” (p 34, para 10)

Conclusion: The CC as the Guarantor of the Czech Constitutionality and the ECtHR's "Loyal Ally"?

The CC stated in its following press report that its role is neither to "protect or perhaps even promote modern trends" nor to be "an arbitrator entering cultural wars and actively determining the direction of social development in the Czech Republic". Justice-Rapporteur Tomková further expressed satisfaction that the CC "resisted the temptation to be omnipotent."

To me, it seems inappropriate to wrap the applicant´s suffering stemming from her gender identity in terms of "modern trends" or "cultural wars". In the same way, no one asked the CC to be omnipotent but to conduct a rigorous constitutional review of impugned laws. I am, therefore, subscribing fully to dissenting Justices´ argument that “if the Constitutional Court is so self-constraint as it has shown in this case, the fundamental rights of the minority in question will not be effectively protected by anyone. And that is, in the context of the rule of law, a big mistake.” (p 35, para 11)

It is also regrettable that despite the ECtHR has already clarified the right to legal recognition given a gender reassignment (Christine Goodwin v. the United Kingdom) and paved a solid way toward the impermissibility of sterilization surgery as a legal requirement for the official recognition of gender (A.P., Garçon and Nicot v. France, X and Y v. Romania and Y.T. v. Bulgaria), it did not resonate in the relevant minority´s reasoning. Hence, despite the Czech CC being regarded as the ECtHR´s “loyal ally” since it is well-receptive to its jurisprudence (Kosař et al (2020), p 182), the judgment in question shows the CC from a different angle. Notwithstanding a single judgment cannot have any broader implications on the CC´s relationship with its international counterpart, one shall not underestimate a possible turnover of the CC in the future. In particular, when one of the most "ECtHR-friendly" Justices, Kateřina Šimáčková, has been recently elected the ECtHR Judge, hence leaving the CC.

In the end, one may be a bit optimistic. Since the said judgment was adopted by the CC relevant minority, it has no precedential power (p 15, para 2) and the CC is not prevented to adjudicate this issue differently in the future. Moreover, since the applicant has exhausted all domestic remedies, she has the door open to the Strasbourg Court. If she will succeed, the CC may be asked to revise its previous judgment while being bound by the ECtHR´s opinion (CCA, paras 117-119b). But here, we are getting too ahead of ourselves.

*The author is a postdoctoral researcher at Institutum Iurisprudentiae, Academia Sinica, Taiwan.