Secretary General's Article 52 ECHR Report on Poland

Earlier this week, the Council of Europe's Secretary, Marija Pejčinović Burić, published her report on Poland's (non-)implementation of a number of key judgments of the Court on the right to a fair trial in Poland, part of the wider debates about the rule of law in Poland. The report was written under the so-called enquiry procedure of Article 52 ECHR which provides: 

'On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention.' 

In this case, the debate focused on two heavily criticised Polish Constitutional Court judgments of 2021 finding specifically Article 6 ECHR contrary to the Polish Constitution. Starting an Article 52 inquiry is extremely rare, as reported earlier here.

It remains to be seen how and to what extent the export will affect the Committee of Ministers' work on the supervising the implementation of judgments. Considering the exceptional and rare use of the Article 52 ECHR option, it should be taken seriously all the more, in order to guarantee the effectiveness of the whole ECHR system. Crucial cases are already on the Committee's agenda for the December meeting and both Rule 9 submissions of a number of Polish NGOs on the relevant European Court judgments, as well as the reactions thereon of the Polish government, will be discussed. This is the official press release:

'A report by Secretary General Marija Pejčinović Burić has been published today on serious issues raised by two judgments of the Polish Constitutional Court of 24 November 2021 and 10 March 2022. In these judgments, the Constitutional Court found that the European Convention on Human Rights, specifically Article 6, which ensures the right to a fair trial (as interpreted by the European Court of Human Rights), is not compliant with the Polish constitution.

The Secretary General concludes that the established and exclusive competence of the European Court to apply and interpret the rights set out in the Convention was challenged by these two judgments. As a result, Poland’s obligation to ensure to everyone under its jurisdiction the enjoyment of the right to a fair trial by an independent and impartial tribunal established by law is, at this stage, not fulfilled in Polish law. The Secretary General expresses her concerns in view of the rising number of similar judgments and related applications pending before the European Court.

In her report, the Secretary General underlines Poland’s strict obligation to execute the judgments of the European Court and stresses that the shortcomings identified need to be addressed by the Committee of Ministers when supervising Poland’s execution of these judgments, pursuant to Article 46 of the Convention. The Committee of Ministers will supervise in December 2022 the execution by Poland of judgments of the European Court in the cases of Xero Flor w Polsce sp. z o.o., Reczkowicz group of cases, Broda and Bojara.

The report shall serve as a basis for further engagement with the Polish authorities in a constructive dialogue, with a view to ensuring the full enjoyment of the right to a fair trial by an independent and impartial tribunal established by law in Poland.'

Call for Contributions: European Yearbook on Human Rights 2023

The European Yearbook on Human Rights has issued a call for contributions for its 2023 issue. The 2023 issue has a special focus on 'Rethinking Human Rights'. 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 challenges of upholding human rights in the world a numerous. While the universal framework for the protection of human rights still has validity and is of utter importance, it is time to question whether there is a need to rethink human rights and adapt applicable frameworks to current challenges for humanity ́s wellbeing and future.

In a special edition dedicated to new human rights challenges, the European Yearbook on Human Rights aims at shedding light on the most pressing issues that might impair the enjoyment of human rights in Europe and beyond in the near future. The aim of the special edition is to bring together research about topics that might have not received sufficient attention by academia or in public discourses but which are likely to shape our lives in the near future.

Therefore, we encourage submissions related to the identification of new human rights challenges but also related to innovative ways and processes to advocate and improve human rights protection for all.

Submissions may relate to (not exhaustive list)

- Human rights and climate change and environmental degradation

- Human rights and energy security

- Human rights litigation

- Human rights protection at the local level

- Human rights and arts

- Human rights and conflict

Authors will be invited to submit full contributions based on an abstract (max 500 words) that should be send by 18 December 2022. Abstracts should be submitted with a short bio to lisa.heschl@uni-graz.at.

The deadline for submitting the manuscript is end of March 2023.

The Yearbook is edited by representatives of the major Austrian human rights research, training and teaching institutions – 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.

For further information on the European Yearbook on Human Rights click here.

New Book on Cyprus at the European Court of Human Rights

Costas Paraskeva and Eleni Meleagrou have published a new book entitled Cyprus at the European Court of Human Rights: A Critical Appraisal of the Court’s Jurisprudence on the Rights to Property and Home in the Context of Displacement (with Brill | Nijhoff). Here is a brief abstract of the book:

"The authors grapple with questions raised by the Court’s reversal in its approach to the violations of the rights to home and property of Cypriot displaced persons resulting from the Turkish occupation of northern Cyprus. In the 4th interstate application of Cyprus v. Turkey, the Court found Turkey in violation of the rights to home and property of hundreds of thousands of Greek Cypriot internally displaced persons resulting from the invasion and occupation of northern Cyprus. Such findings were also firmly established in a handful of individual applications, most prominent amongst which is the landmark case Loizidou v. Turkey. However, a couple of decades following these judgments the findings of violations were jettisoned by the inadmissibility decision in Demopoulos and others v. Turkey."

Interview with Robert Spano on the UK and the ECtHR

Legal commentator Joshua Rozenberg recently interviewed the former president of the European Court of Human Rights, Robert Spano. In the interview for the BBC, Robert Spano talks about the relationship between the Court and the United Kingdom, the UK Bill of Rights introduced by Justice Secretary Dominic Raab, and the future of democracy in Europe. Listen to the interview here! 

New Book on Human Rights Disputes in Sport before the ECtHR

Daniel Rietiker (senior lawyer at the ECtHR) has just published a new book entitled Defending athletes, players, clubs and fans: Manual for human rights education and litigation in sport, in particular before the European Court of Human Rights. Here is a brief summary:

''This essential book describes the scope and limits of the European Court of Human Rights’ role in resolving human rights disputes in sport, drawing on its own case law and other jurisdictions, notably the United States. It covers all aspects of the actual and potential application of human rights in sport as they relate to athletes, players, clubs and supporters. All those interested in the link between human rights education, strategic litigation and sport will find in this indispensable handbook the first comprehensive and explained summaries of the Court's case law in this area.''

Call for Abstracts on Populism, Authoritarianism and the ECtHR

The PluriCourts Centre at the University of Oslo has issued a call for abstracts. It relates to an upcoming workshop with the title 'The European Court of Human Rights Facing Populism and Authoritarianism: Time for System Change?' which will take place on 27 and 28 April 2023 and will focus on populism, authoritarianism and the response of the European Court of Human Rights. This is the call for abstracts, with the middle of Christmas 26 December deadline:

'Populist and authoritarian governments in Europe have severely eroded the basic constitutional safeguards distinctive of liberal democracy. These attacks also target the recognition and exercise of human rights – and their ultimate guardian, the European Court of Human Rights (ECtHR) and the Council of Europe (CoE). Several state parties with a populist or authoritarian government in place refuse to implement adverse judgments of the Court. Others make it very difficult for individuals to exhaust domestic remedies, in order to put the ECtHR out of their reach. How does the ECtHR/CoE respond, and how could it respond better?

Studies of responses to populism and authoritarianism in the European Union as well as those of constitutional law and theory have abounded in recent years. Yet, no comprehensive study has so far examined the response and opportunities of the European Court of Human Rights and the Council of Europe more generally. Valuable existing contributions largely refer to particular cases often without distinguishing the systemic features of the Court and without attending to its adjudicatory practice in great depth. Can the ECtHR and the CoE can use existing tools crafted by legal scholars and political scientists given that its international, human rights-focused and subsidiary role?

The workshop aims to fill this gap by examining the Court’s role (including the CoE). For example, which variety of populism targets the ECtHR specifically, and is it different from the constitutional arena? And how has the Court responded so far? Such attacks may lead the Court to further develop – or limit – its jurisdictional, interpretive and investigative arsenal. The Court has been conventionally portrayed as the external guarantee for the basic democratic rights of individuals – a notorious example of ‘militant democracy’. Is the Court today up to the task of facing more subtle and insidious threats to democracy, the rule of law, and human rights? The workshop also interrogates whether these threats require the Court not only to pursue new policies, but also require reform of the systemic relationships between the Court and domestic authorities, in particular the mechanisms expressing subsidiarity. National authorities have been conceived as the “compliance partners” (Alter) already at the Court’s beginning. Yet, populists and authoritarians have developed advanced political and legal techniques to use and abuse subsidiarity to their advantage, thereby undermining the structure of the Court’s system. Do these domestic techniques require reform of the subsidiarity roles of the ECtHR?'

More information, also on the workshop's setup can be found here. And abstract can be submitted through here.

New Book on the ECHR Regime and Immigration and Minority Policies

Dia Anagnostou (Associate Professor, Panteion University of Social Sciences) has just published a new book entitled The European Convention of Human Rights Regime: Reform of Immigration and Minority Policies from Afar. Here is the abstract:

'Prompted by an unprecedented rise of litigation since the 1990s, this book examines how the European Convention of Human Rights (ECHR) system and the Strasbourg Court interact with states and non-governmental actors to influence domestic change. Focusing on European Court of Human Rights litigation and state implementation of judgments related to minority discrimination and asylum/migration, it argues that a fundamental transformation of the Convention system has been under way. Repeat and strategic litigation, shifting methods of supervision and state implementation to remedy systemic violations, and above all the growing engagement of civil society and non-governmental actors, have prompted a distinctive trend of human rights experimentalism. The emergence of experimentalism has profound implications for the legitimacy, effectiveness and further reform of the ECHR system. This study provides an original constitutive account of regional human rights regimes and how they are activated by societal actors to claim rights, advance case law, and pressure for domestic legal and policy change. It will be of interest to international law and international relations scholars, political scientists, specialists on the ECHR, the Strasbourg Court, as well as to scholars interested in the human rights of immigrants and minorities.'

New Book on Fair Trial Rules of Evidence in ECtHR Case-Law

Jurkka Jämsä (Vaasa Court of Appeal, Finland) has published the monograph Fair Trial Rules of Evidence. The Case Law of the European Court of Human Rights with Routledge.  It is a very structured practice-oriented guide on the law of evidence and the normative framework the European Court of Human Rights' case-law provides for it. This is the abstract:

'This book examines how the European Court of Human Rights approaches the matter of evidence, and how its judgments affect domestic law.

The case law of the Court has affected many areas of law in Europe. One of these areas is the law of evidence, and especially criminal evidence. This work examines the key defence rights that may touch upon evidence, such as the right to adduce evidence, the right to disclosure, the privilege against self-incrimination and access to a lawyer, entrapment, and the right to cross-examine prosecution witnesses. It explains the relevant assessment criteria used by the Court and introduces a simple framework for understanding the various assessment models developed by the Court, including "the Perna test", "the Ibrahim criteria", and "the sole or decisive rule".

The book provides a comprehensive overview on the relevant case law, and will be a valuable asset for students and researchers, as well as practitioners, such as judges, prosecutors, and lawyers, working in the areas of criminal procedure and human rights.'