New Thematic Factsheet on the Reopening of Domestic Judicial Proceedings Following the European Court's Judgments

Last week, the Council of Europe's Department for the Execution of Judgments of the European Court of Human Rights has published a new thematic factsheet on the reopening of domestic judicial proceedings following judgments of the European Court of Human Rights. Here is a brief description:

'The full, effective and speedy implementation of the judgments of the European Court of Human Rights by the States parties to the Convention makes a major contribution to the achievement of common observance and enforcement of human rights in Europe. 

A judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. This is the principle of restitutio in integrum, which has also frequently been applied by the Committee of Ministers. The need to improve the possibilities under national legal systems to ensure restitutio in integrum for the injured party has become increasingly apparent. Although the Convention contains no provision imposing an obligation on States to provide in their national law for the re-examination or reopening of proceedings, the existence of such possibilities has proven to be important, and indeed in some cases the only, means to achieve restitutio in integrum. 

The present factsheet presents an overview of the general principles concerning reopening of domestic judicial proceedings, as well examples of the relevant State practice examined by the Committee of Ministers in the context of the execution of the European Court’s judgments concerning various provisions of the Convention.'

CoE Guidelines on Preventing and Remedying ECHR Violations

We had not yet reported on it, but at the end of last month, the Committee of Ministers of the Council of Europe adopted guidelines to assist themselves, the 46 Council of Europe member states, in their efforts to comply with their obligations to secure to everyone, within their jurisdiction, the rights and freedoms defined in the European Convention on Human Rights (ECHR). The formal title is 'Guidelines of the Committee of Ministers on the prevention and remedying of violations of the Convention for the protection of human rights and fundamental freedoms'. In many ways a compilation of earlier standards and recommendations in one single document and aiming to address the implementation gap, the Guidelines in the Committee of Ministers' own words focus on the following:

• preventing violations through effective national implementation of the Convention (extending awareness-raising of, and training on, the Convention system)
• improving domestic remedies
• facilitating the domestic application of the Convention and relevant case law of the Court
• 'improving verification of the compliance of draft laws, existing laws and administrative practices with the Convention
• improving parliamentary involvement
• strengthening the role of National Human Rights Institutions and civil society organisations
• promoting experience sharing, enhancing co-operation programmes with the Council of Europe
• and considering the ratification of Protocol No. 16 to the Convention (concerning requests for advisory opinions).

As regards remedying violations found by the Court, the guidelines recommend that member states:

• strengthen domestic capacity for rapid and effective remedial action and coordination structures
• improve the publication and dissemination of information on the execution of judgments of the Court
• ensure that remedies are fully effective in the execution context
• enhance efforts to deal with technical and other obstacles regarding the execution of the Court’s judgments
• and promote stakeholder participation in the execution process.'

New Book: Exporting the European Convention on Human Rights

Maria-Louiza Deftou (Postdoctoral Researcher at the Athens Public International Law Center) has just published a monograph entitled Exporting the European Convention on Human Rights with Bloomsbury. Here is the abstract:

'This book explores how the European Convention on Human Rights operates and influences on the global stage. The ECHR and its interpretation by the European Court of Human Rights (ECtHR) considerably echo in and outside Europe. To what degree has that influence translated into its norms, doctrines and methods of interpretation being exported into equivalent systems which also enact the protection of fundamental rights? This book answers that question by exploring the judicial dialogue of the ECHR system with comparable legal orders.

Through a horizontal and multifaceted study of regional and global systems, the book identifies the impact of the ECHR within the confines of their jurisprudence to provide scholars in the field of international human rights law with an essential text. Discussing the extent to which the ECHR penetrates into the judicial production of the most affected legal systems, the book mostly focuses on the case law of the Court of Justice of the European Union, the Inter-American Court of Human Rights and the UN Human Rights Committee. It also investigates whether there is room for cross-fertilisation between them and finally, moves on to explore the legal consequences of the interplay of these mechanisms with the ECtHR and what it means for the overall functioning of international human rights law.'

New ECHR Readings

Please find below a number of newly published readings related to the European Convention on Human Rights and the European Court of Human Rights of the last few months:

● Veronika Fikfak and Lora Izvorova, ‘Language and Persuasion: Human Dignity at the European Court of Human Rights’, Human Rights Law Review, Volume 22, Issue 3 (2022):

‘Although the concept of human dignity is absent from the text of the European Convention on Human Rights, it is mentioned in more than 2100 judgments of the European Court of Human Rights. The judges at the Court have used dignity to develop the scope of Convention rights, but also to signal to respondent states just how serious a violation is and to nudge them toward better compliance. However, these strategies reach dead ends when the Court is faced with government submissions that are based on a conception of dignity that is different from the notion of human dignity relied on by the Court. Through empirical analysis and by focusing on Russia, the country against which the term dignity is used most frequently, the paper maps out situations of conceptual contestation and overlap. We reveal how the Court strategically uses mirroring, substitutes dignity for other Convention values, or altogether avoids confrontation. In such situations, the Court’s use (and non-use) of dignity becomes less about persuading states to comply with the Convention and more about preserving its authority and managing its relationship with states.’

● Dr. Maria-Louiza Deftou, ‘The Road to the EU’s Accession to the ECHR: Reshaping the ECtHR-CJEU Judicial Interaction in Cases of ‘Unwanted Migration’?’, International Community Law Review, Issue 24 (2022):

‘The dual European judicial protection of fundamental rights with the two Courts, namely the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), represents a multi-layered, yet dialectic, model of protection with no formal hierarchy between its components. In the aftermath of Opinion 2/13 and faced with uncontrolled ‘unwanted migration’ flows, the EU judicature defended the principle of mutual trust at any cost and appeared to prioritise the protection of the Dublin regime (the EU responsibility allocation mechanism for examining asylum applications) instead of addressing the novel human rights challenges facing the Common European Asylum System (CEAS). Yet, their interplay has entered a new era since the renegotiation of the EU’s accession to the ECHR launched. By analysing the case law of the two Courts, this article thinks anew their relationship to ascertain whether the evolution of the accession project, throughout the latest decade, has affected the protection offered to ‘unwanted migrants’ in Europe.’

● Laura-Stella Enonchong, ‘Public prosecutors and the right to personal liberty: An analysis of the jurisprudence of the UN Human Rights Committee and the European Court of Human Rights’, Netherlands Quarterly of Human Rights, Vol. 40, Issue 3 (2022) pp. 222-243:

‘This article discusses the approach of the United Nations Human Rights Committee (HRC) and the European Court of Human Rights (ECtHR) to interpreting and applying the right to personal liberty, in particular in relation to the judicial control of the deprivation of liberty. It appears that both institutions adopt an interpretative approach that aligns with the object and purpose of the right. However, in the application to individual cases, unlike the ECtHR, the HRC fails to clarify the scope of the relevant provision of the ICCPR, specifically, the independence and impartiality of the public prosecutor as ‘an other officer authorised by law to exercise judicial power’. That situation may ultimately undermine a more effective attainment of the object and purpose of the right to personal liberty. The article argues for the HRC to adopt a more systematic approach to interpreting and applying that right in particular and the provisions of the ICCPR in general.’

Launch of the Court's Knowledge Sharing Platform

On 18 October 2022, the Court's Knowledge Sharing platform (ECHR-KS) was launched, a platform developed by the Registry. On the platform, up-to-date data and analyses of developments in the Court's case-law through specific Convention Articles/Transversal Themes are shared. The platform thereby complements other sources for the Court's case-law such as HUDOC. 

The Knowledge Sharing platform is available in the two official languages of the Court, English and French. The information available is updated on a weekly basis. 

In this video the Court's Registrar, Marialena Tsirli, explains the functioning of the platform and how to use it. In addition, this video will help you navigate through the system.

Video Interview with Court President Robert Spano

Current Court President Robert Spano is in his last few weeks at the helm of the European Court of Human Rights. To look back at his presidency of the Court over the last 2.5 years, he has been interviewed this month by professor Mikael Rask Madsen, the director of iCourts at the University of Copenhagen. The interview, following a similar earlier one done in 2020, provides a broad panorama of the Court and it's case-law and is partly based on questions collected from ECHR experts across Europe. Well worth to watch this interview video!

New Book: Case Law Compendium on the Death Penalty and Extrajudicial Execution

Jeremy McBride (Barrister at Monckton Chambers, London, specialising in cases before the ECHR and the UNHRC) has published the book entitled Compendium of case law of the European Court of Human Rights on the death penalty and extrajudicial execution, with Council of Europe  (2022). Below is a brief summary of the book:

 

'The compendium’s aim is to assist national judges, prosecutors and lawyers from the 46 member states of the Council of Europe to deal with extradition or deportation cases when there is a risk of the death penalty being imposed in third countries or of extrajudicial execution. It also aims at enabling legal professionals from countries where the death penalty still exists to develop arguments based upon the reasoning of the case law of the European Court of Human Rights. It contains relevant extracts from the Court’s case law, structured in a user-friendly way.'

Hybrid Colloquium on Margin of Appreciation

This Thursday 13 October, in the afternoon, Maastricht University, is organising a hybrid colloquium entitled 'The Margin of Appreciation as the Bridge Between the Universal Presence of Human Rights and Their Concrete Implementation'. The full programme can be found here. This is the abstract of the event:

'In the last two decades, the margin of appreciation has become a cornerstone of the Convention system, but it remains a contested and undertheorized concept. Stijn Smet argues that the European Court has never fully explained exactly what the margin of appreciation is or does. J.G. Merrills notes that the margin of appreciation is fraught with difficulty, and Steven Greer concludes that the most striking characteristic of its application remains its casuistic, uneven, and largely unpredictable nature. This ambiguity primarily concerns the question of when and why the Court grants states a ‘certain’, a ‘narrow’, or a ‘wide’ margin of appreciation. On the one hand, this elusive character enables the margin of appreciation to function as a ‘lubricant’ in the Convention system. On the other hand, this elusive character might undermine central legal principles such as legal certainty and the rule of law.

This colloquium will analyze the margin of appreciation as the bridge between the universal presence of human rights and their concrete implementation. It is organized by the Department of Foundations and Methods of Law in collaboration with the Maastricht Centre for Human Rights.

This colloquium will be conducted in a hybrid format offering attendees the option to join virtually via Zoom or in-person in Maastricht.'

New Book on Private Actors and the Procedure Before the European Court

A bit over a week ago, my Utrecht Law School colleague and SIM fellow Claire Loven successfully defended her PhD dissertation. Followers of this blog may know her as the moderator of our MOOC on the ECHR. Dr Loven's monograph has already been published with Intersentia Publishers in the Human Rights Research Series and is entitled Fundamental Rights Violations by Private Actors and the Procedure Before the European Court of Human Rights. The PhD thesis was written under the supervision of my Utrecht colleagues professors Janneke Gerards and Cedric Ryngaert. I had the pleasure of serving as a member of the reading committee and can attest that it is lucidly written and contains a very thorough and well-researched analysis of what dr Loven has dubbed 'verticalised cases' before the European Court. This is the abstract:

'Article 34 of the European Convention on Human Rights prescribes that individual applications must be directed against one of the Convention States. Consequently, private actors involved in proceedings against other private actors before domestic courts must complain about State (in)action in their application to the European Court of Human Rights. In other words, originally ‘horizontal’ conflicts must be ‘verticalised’ in order to be admissible. Although such verticalised cases make up a large portion of the Court’s case law, the particular nature of these cases, as well as procedural issues that may arise in them, has not received much attention. To fill this gap, this book offers a detailed examination of verticalised cases coming before the Court. The characteristics of and the Court’s approach to verticalised cases are explored by means of an in-depth analysis of four types of verticalised cases (cases related to one’s surroundings; cases involving a conflict between the right to reputation and private life and the right to freedom of expression; family life cases; and employer-employee cases). On the basis of this analysis, it is argued that the Court’s current approach to verticalised cases poses problems for private actors, Convention States and the Court itself. In presenting recommendations for the resolution of these problems, the book concludes with a proposal for a new approach to verticalised cases, consisting of a redesigned third-party intervention procedure.'

Congrats once again, Claire!

New Issue ECHR Law Review

The newest issue of the ECHR Law Review is out now (vol. 3, issue 3). The issue contains an editorial note, two guest editorials, a case report, a book review and research articles. The contributions discuss such topics as the judicial discretion of the European Court of Human Rights, the practice of national courts to request advisory opinions under Protocol 16 and utilitarianism, to name a few. This is the table of contents:

* Vassilis P Tzevelekos and Kanstantsin Dzehtsiarou, 'The Judicial Discretion of the European Court of Human Rights: The Years of Plenty, and the Lean Years'

* Françoise Tulkens, 'Judicial Activism v Judicial Restraint: Practical Experience of This (False) Dilemma at the European Court of Human Rights'

* George Tsebelis, 'What Determines the Judicial Discretion of the European Court of Human Rights?'

* Lize Glas and Jasper Krommendijk, 'A Strasbourg Story of Swords and Shields: National Courts’ Motives to Request an Advisory Opinion from the ECtHR Under Protocol 16'

* Jeremy Letwin, 'A Utilitarian Account of Article 3 ECHR'

* Sarah Ganty, 'The Double-Edged ECtHR Lăcătuş Judgment on Criminalisation of Begging: Da Mihi Elimo Sinam Propter Amorem Dei'

* Paul Gragl, 'Cedric Marti, Framing a Convention Community: Supranational Aspects of the European Convention on Human Rights'

Updated Factsheet on Mass Surveillance and the ECHR

The European Court of Human Rights has published a revised version of its factsheet on Mass Surveillance. This newest update of September 2022 includes the leading cases ranging from the classic 1970s landmark judgment in Klass and others v Germany to the Haščák v. Slovakia case of this Summer. It also indicates pending applications on the issue.

All factsheets, on a wide range of issues, can be found here.