Monday 14 February 2022

New ECHR Readings

Please find below a new batch of ECHR-related publications of the last few months. More will follow in some of our subsequent posts.

Başak Çalı 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’, ECHR Law Review, 2021, Vol. 2, Issue 2:

‘This article introduces the Special Issue on ‘The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections’. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE’s ability to produce timely, consistent, and co-ordinated responses against systemic threats.’

Kushtrim Istrefi and Cedric Ryngaert, ‘Makuchyan 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’, ECHR Law Review (14 September 2021) [case note]

Elif Erken, ‘Non-Governmental Organisations and National Human Rights Institutions monitoring the execution of Strasbourg Judgments: An Empirical Perspective on Rule 9 Communications’, Human Rights Law Review, 2021, Vol. 21, Issue 3, pp. 724–751:

‘This article considers a scarcely explored perspective in relation to the execution of judgments of the ECtHR, notably, the formal involvement of NGOs and NHRIs. Rule 9(2) of the Committee of Minister Rules’ allows NGOs and NHRIs to participate in the supervision process for the execution of the Court’s judgments by submitting reports (Communications) in which these actors review and assess domestic authorities’ performance with respect to judgment execution. On the basis of interviews with important stakeholders, this article provides an all-round user-based perspective of this Rule 9 mechanism and its perceived impact. Doing so elucidates whether the Rule 9 procedure allows NGOs and NHRIs to engage in the important cycle of reporting and pressuring for change, the conclusions of which are important in assessing if and how Rule 9 works to advance the execution of judgments of the ECtHR.’

Toon Moonen & Laurens Lavrysen, ‘Abstract but Concrete, or Concrete but Abstract? A Guide to the Nature of Advisory Opinions under Protocol No 16 to the ECHR’, Human Rights Law Review, 2021, Vol. 21, Issue 3, pp. 752–785.

‘In constitutional adjudication, a well-known distinction exists between abstract and concrete review. Under abstract review, a court evaluates a rights interference detached from any particular application to the facts of a case. Under concrete review, the review arises as an element of adjudication of specific facts. In this contribution, we explain theoretically how this distinction plays both at the macro level of a review system and the micro level of specific cases. These concepts are then used to explore and understand the advisory procedure recently introduced by Protocol No 16 to the European Convention on Human Rights. We argue that this mechanism theoretically provides for a type of review that is more abstract than the review exercised under the European Court of Human Rights’ contentious jurisdiction, yet still allows for important elements of concreteness to enter the analysis. This is confirmed by Advisory Opinions Nos 1 and 2.’

Yutaka Arai-Takahashi, ‘Arguable but Superfluous? – Judicial Policies of the European Court of Human Rights in Relation to the Right to an Effective Remedy Before a National Authority Under Article 13 ECHR’, Israel Yearbook on Human Rights, 2021, Vol. 51.
Eugénie Delval, ‘The Kunduz airstrike before the European Court of Human Rights: a glimmer of hope to expand the Convention to UN military operations, or a tailored jurisdictional link?’, The Military Law and the Law of War Review, 2021, pp. 244-275:
‘On 16 February 2021, the Grand Chamber of the European Court of Human Rights ruled, in Hanan v. Germany, that Germany exercised its extraterritorial jurisdiction for the purpose of its procedural obligation under Article 2 of the European Convention on human rights to investigate the airstrike it carried out in Afghanistan within the framework of a United Nations Security Council resolution. To establish an extraterritorial jurisdictional link, the Court relied on the ‘special features’ threshold that it has recently introduced in its jurisprudence, along with the threshold of the ‘institution of a criminal investigation’. This potentially extends the standards of protection under the ECHR to situations where Contracting States are carrying out massive military operations in armed conflict, such as airstrikes, even within the framework of a UN mandate. Nonetheless, the Court remains cautious not to formulate general theories of jurisdiction and retains a very strict (and casuistic) control over the new jurisdictional thresholds.’

Lorenzo Acconciamessa, ‘The Case Law of the ECtHR in 2020 in the Light of the Principle of Systemic Harmonisation’, in Philip Czech et. al. (eds.), European Yearbook on Human Rights2021 (Intersentia 2021).

And finally, Yota Negishi, of Seinan Gakuin University in Japan, has published monograph with a comparative study of the ECHR and the Inter-American Human Rights system, entitled Conventionality Control of Domestic Law: Constitutionalised International Adjudication and Internationalised Constitutional Adjudication, with Nomos:

'Through gaining lessons from the doctrine of constitutionality control, the book deals principally with conventionality control achieved by judicial adjudicators. This monograph fills the gap in comparative international human rights law by analysing the practice of conventionality control in Europe and Latin America. Based on the empirical data, the author normatively envisions a ‘trapezium’ model of conventionality control with the features of openness, substantivism and human-centrism, which overcomes the limits of the closed, formalist, and State-centric ‘pyramid‘ model.'