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.

Friday, 15 April 2022

Call for Abstracts: The Value(s) of the European Convention on Human Rights

On 8 and 9 September 2022, B
irmingham Law School and PluriCourts will host a workshop on The value(s) of the European Convention on Human RightsHere is the call for abstracts:

The European Convention on Human Rights gives expression to – and establishes – a community of value. According to the Preamble, it builds upon the ‘common heritage of political traditions, ideals, freedom and the rule of law’ to achieve ‘greater unity’ between its members through ‘the maintenance and further realisation of human rights and fundamental freedoms’. Such unity is not an end in itself: a ‘common understanding and observance’ of human rights, together with ‘effective political democracy’, is needed to secure fundamental freedoms which are ‘the foundation of justice and peace in the world’.

These statements were made more than 70 years ago. Today, both the community and its values are under unprecedented pressures. Russia withdrew and was later expelled from the Council of Europe as a consequence of its invasion of Ukraine; the Polish Constitutional Tribunal has declared the right to a fair trial from Article 6(1) ECHR incompatible with the Polish Constitution in so far as it applies to the election of constitutional judges; and the British Government seeks to reform the Human Rights Act 1998 to ‘reduce reliance on the Strasbourg case law’, ‘reinforce the supremacy of the UK Supreme Court in the interpretation of rights’, as well as provide a ‘democratic shield’ that would protect Parliamentary sovereignty against the perceived threat of Strasbourg jurisprudence.

Against the backdrop of such challenges, the workshop aims to reflect on the values of the European Convention on Human Rights. First, the workshop seeks to examine the value of the Convention itself. To that end, the workshop aims to scrutinize the role, purpose, or value of the Convention system, the standards against which we should assess its successes and failures, and the ways in which the system can better fulfill or renew its original mission. In so doing, it aims to assess the value of the Convention both from the perspective of its historical achievements, and from the standpoint of its advantages and limits in the current socio-political context.

Second, the workshop discusses the foundational values from the Convention, and their interpretation and application by the European Court of Human Rights. It aims to do so on at least two different levels. On the one hand, it probes the specific values underlying the Convention system – such as dignity, liberty, and equality – and their meaning and role in the case-law of the ECtHR. On the other hand, it examines the status of such values – in terms of their universality, objectivity, normativity, and hierarchy between them – as well as the bearing of such status on the Court’s doctrines and its understanding of human rights.

Some questions that the workshop will seek to address are:

1. What are the purposes of the Convention and to what extent has the ECtHR been successful in achieving such purposes? What is the standard against which we should assess the successes and failures of the ECtHR?

2. To what extent has the role of the Convention changed in recent years and what consequences does that have on the doctrines of the ECtHR? How can the ECtHR preserve and maintain the value of the Convention in present circumstances?

3. To what extent are fundamental values from the Convention universal? To what extent are such values different from the values that are protected in other regional or global systems of human rights protection? To what extent should the value-based reasoning of the Court be informed by contingent circumstances?

4. Where does the normativity of values from the Convention come from? Are they best thought of as objective and external to legal practice or are they partly constructed or generated in the process of legal reasoning? To what extent should the ECtHR rely on value-based reasoning and to what extent it can or should avoid it?

5. What is the communal dimension of the fundamental values behind the Convention? Are there some evaluative commitments or duties arising from the membership in a community of value established by the Convention that exist in addition to the protection of substantive values from the Convention?

6. What are the evaluative assumptions presupposed by the key doctrines of the ECtHR, such as European consensus, margin of appreciation, public order, democratic society, autonomous concepts? How does the use of proportionality analysis by the ECtHR affect its understanding of values from the Convention?

These questions are for illustrative purposes only: we welcome papers from any discipline that fall within the broad theme of the workshop.

The deadline for submission of abstracts is 3 June. For more information about the submission of abstracts, venue, and funding, click here.

Wednesday, 13 April 2022

New Book: Theory and Practice of the European Convention on Human Rights

There is a new open access edited volume on the Theory and Practice of the European Convention on Human Rights (Nomos, 2022). The book was edited by Stephanie Schiedermair, Alexander Schwarz and Dominik Steiger.

Here is a brief abstract.

"This edited book brings you a collection of current, critical issues regarding the theory and practice of the European Court of Human Rights. The book is divided into three parts: procedural concerns, principles and jurisprudence, and interaction with national legal systems. Each chapter was written by an expert, with each author coming from a distinct background. The authors all presented at the 2019 University of Leipzig’s & University of Dresden’s 1st International Summer School on the European Court of Human Rights, with only select presenters asked to contribute to this book. The book’s goal is to promote further research and discourse on the operation of the Court, a goal that will be continued in the second summer school in 2021. With contributions by Veronika Bilkova, Katharina Braun, Robert Frau, Hanaa Hakiki, Beti Hohler, Stefanie Lemke, Helga Molbaek-Steensig, Jacopo Roberti di Sarsina, Christiane Schmaltz, Barbara Sonczyk, Dominik Steiger, Edith Wagner and Alain Zysset."

Thursday, 7 April 2022

New Book on a Constitutionalist Approach to the ECHR

Lisa Sonnleitner of 
Karl-Franzens University Graz has published the new monograph A Constitutionalist Approach to the European Convention on Human Rights. The Legitimacy of Evolutive and Static Interpretation with Bloomsbury Publishers. This is the abstract of the book:

'This book presents a new constitutional argument for the legitimacy of evolutive interpretation of the ECHR. It constructs a model, in which evolutive and static constitutional principles are balanced with each other. 

The author argues that there are three possible interpretive approaches in time-sensitive interpretations of the ECHR, but that only one of them is justifiable by reference to the constitutional principles of the ECHR in every single case. 

The ECHR's constitutional principles either require an evolutive or static interpretation or they do not establish a preference relation at all, which leads to a margin of appreciation of the member states in the interpretation of the Convention. The balancing model requires the determination of the weights of the competing evolutive and static constitutional principles. For this purpose, the author defines weighting factors for determining the importance of evolutive or static interpretation in a concrete case.'

Monday, 4 April 2022

Execution of the European Court of Human Rights’ Judgments – Major Advances and Challenges

By Nikolaos Sitaropoulos 

Introductory remarks

At the 130th Session of the Council of Europe Committee of Ministers (CM) which was held in Athens in November 2020, the CM adopted decisions on Securing the long-term effectiveness of the ECHR system which underlined  “the extraordinary contribution of the Convention system to the protection and promotion of human rights and the rule of law in Europe…as well as its central role in maintaining and fostering democratic stability across the Continent”.

The CM stressed member states’ responsibility to resolve the systemic and structural human rights problems identified by the Court in its judgments. The states parties to ECHR were called on in particular to give full effect to the principle of subsidiarity (which Protocol No 15 to the ECHR inserted in the Convention’s preamble) by complying with their Convention obligations and abiding by the judgments of the ECtHR. The CM also recalled the importance of existence at national level of an efficient capacity for rapid execution of the ECtHR judgment, recalling the relevant CM Recommendation CM/Rec(2008)2.

These issues were echoed in the decisions adopted by the CM in May 2021 at its 131st Session in Hamburg which additionally highlighted the increased complexity and challenges posed by non-execution or “persistent refusal” to execute ECtHR judgments, and by inter-state disputes which are on the rise. As shown below, the crucial importance of all these questions and the need to reinforce the execution process in Strasbourg and especially “at home” are confirmed by the 2021 Annual Report on the execution of the ECtHR judgments (‘2021 Annual Report’) issued by the CM on 30 March 2022. 

Major advances in the execution of the ECtHR judgments

According to the 2021 Annual Report, in 2021 there were 1,379 new judgments (an increase of 40% compared to 2020) delivered by the ECtHR and forwarded to the CM for execution supervision under Article 46§2 ECHR. As of end 2021 there were 5,533 ECtHR judgments under supervision by the CM. This number is a bit higher than those of 2019 (5,231) and 2020 (5,233) but still one of the lowest since 2007 (6,711). The fact that a case is pending before the CM does not in fact mean that the respondent state has not taken any measure for the execution of the relevant ECtHR judgment (individual measures to provide full redress to the applicant, and general measures to prevent recurrence of similar ECHR violations). Most often, the “pending case” status means either that measures adopted are under assessment by the CM and/or more measures appear to be necessary and are under consideration.

Every year the CM records a plethora of measures taken and reforms undertaken or completed by respondent states in order to fully comply with the ECtHR judgments (see e.g. “Main Achievements” in country factsheets). Indeed it is rather an understatement to say that the number and range of law and policy-related changes which have occurred in European states over decades following ECtHR judgments are impressive and on many occasions groundbreaking. The 2021 Annual Report (chapter II) highlights examples of major advances recorded last year which include the following:  Romania abolished prescription for torture by amending legislation, in line with the ECtHR case-law and the CM decisions in Al Nashiri. A similar legislative change took place in Armenia (Virabyan and Muradyan groups of cases, in effect in 2022) and is planned by North Macedonia (Kitanovski group of cases). France adopted a law providing for a new judicial remedy concerning poor conditions of detention, following the ECtHR judgment in J.M.B. and Others. Wide-ranging measures to enhance investigations into hate (especially homophobic) crime were recorded in the context of execution of Beizaras and Levickas v. Lithuania.

Another major positive development recorded in 2021 was the reinforcement of the participatory nature and transparency of the execution process especially through communications submitted to the CM by European civil society organisations and National Human Rights Institutions (NHRIs). The submission of such communications is possible since 2006 under Rule 9.2 of the CM Rules on the supervision of execution of the ECtHR judgments. In 2021 these communications reached 207 concerning 27 states. This is a significant increase, bearing in mind that until 2019 these communications were never more than 90. It reflects and confirms also the importance of NHRIs and the  valuable contribution of civil society organisations to the promotion and protection of the rights enshrined in the Convention, stressed by the CM in its above-mentioned decisions adopted in Athens at its 130th Session.

In this context one may note that the “Rule 9.2” communications submitted by NHRIs, compared to those submitted by NGOs, remain at a low level (11 received in 2021 and 14 received in 2020). However, in the last couple of years there has been an increased interest by NHRIs in the execution process. In 2021 the European Network of NHRIs (ENNHRI) created the first interactive resource hub with guidance on the implementation of ECHR judgments, which was supported by the Department for the Execution of ECtHR judgments. This on-line hub aims to support and guide NHRIs in their efforts to enhance their work on the implementation of the ECtHR judgments at national and international level. It contains a compilation of resources and tools on execution of the ECtHR judgments as well as information on good practices by NHRIs in this field. 

Major challenges with which the execution process is faced

Several systemic and structural human rights problems persist and remain on the CM supervision agenda for many years, despite the efforts made by respondent states and advances which have occurred. The persistence of such issues adversely affects the caseload of the ECtHR which, as a result, receives repetitive applications (raising structural/general problems already examined by the Court) and delivers repetitive judgments, then relayed to the CM to supervise their execution. Although the number of repetitive judgments pending before the CM as of end 2021 (4,233) is almost half compared to the 2011-2016 figures, there is a trend of increase since 2019 (see statistics section C.1 of 2021 Annual Report).

As noted in the 2021 Annual Report, major issues concerning the functioning of the judicial system scored high among the main themes of “leading cases” in “enhanced supervision”:  cases concerning excessive length of judicial proceedings constituted 8% while cases related to non-enforcement of domestic judicial decisions constituted 3%. Already in the 2011 Annual report these themes were recorded among the major ones examined by the CM, but the respective percentages were higher (21,61% and 9,52%). Also, in 2021 12% of all leading cases in the enhanced supervision procedure concerned actions of (mainly ill-treatment by) security forces and/or ineffective investigations, this being the highest percentage of such cases under supervision. By way of comparison, in 2011 these cases constituted 13,92%. Lastly,  poor conditions of detention (and lack of effective remedies) represented again in 2021 one of the highest percentages of leading cases in enhanced supervision (8%). In 2011 the relevant percentage was 11,36%.

The tackling and resolution of such systemic and structural human rights problems are linked, to a very high degree, to the respondent states’ capacity to act and, above all, coordinate rapidly action necessary in order to adopt general measures able to prevent recurrence of similar violations. The 2020 Annual Report (chapter II) had indicated that despite progress achieved in recent years in this domain, there are two major challenges identified in national practice. First, the status and resources of the national coordinator (usually this is the Government Agent before the ECtHR). Secondly, these coordinator’s capacity in identifying the necessary execution measures and promptly preparing the action plans and reports, in cooperation with all competent national authorities.

Furthermore, other statistical data contained in the 2021 Annual Report (statistics – sections E.1 and G.2) give rise to concern. First, they indicate that there are delays in the submission by respondent states of action plans or reports. In fact, in 2021 84 relevant “reminder letters” were sent by the Secretariat (Department for the Execution of ECtHR judgments) to 16 states, while in 2020 48 such letters had been dispatched to 19 states. Secondly, there has been a steady increase of cases in which delays occur in the submission by states to the CM of information concerning payment of just satisfaction awarded by the ECtHR. In 2021 there were 1,772 such cases, while in 2020 and 2019 they were 1,602 and 1,423 respectively.

Another major challenge to the execution process and the whole ECHR system are the inter-state and individual cases related to post-conflict situations or unresolved conflicts. Such cases are by definition highly complex and politically sensitive, often examined by the CM in more than one of its four annual Human Rights meetings. It is to be noted that (conflict related) inter-state applications before the ECtHR are on the rise and ten such cases were pending at the ECtHR as of end 2021. Since 2020 an expert committee of the CDDH (Steering Committee for Human Rights) in the Council of Europe has been working on proposals to enhance the effective processing and resolution of cases relating to inter-state disputes and individual applications arising from such situations.

In 2021 a new (third) inter-state case, Georgia v. Russia (II) was added to the agenda of the CM and scheduled to be examined in 2022 in a Human Rights meeting. It concerns various violations of the Convention in the context of the armed conflict between Georgia and Russia in August 2008. Two other inter-state cases examined by the CM in 2021 were the following: Georgia v. Russia (I) concerning  the arrest, detention and expulsion from Russia of large numbers of Georgian between September 2006 and January 2007; Cyprus v. Turkey, concerning various violations in relation to the situation in the northern part of Cyprus since the military intervention by Turkey in 1974. Related individual cases which were  again in 2021 on the CM Human Rights meetings’ agenda were: Xenides-Arestis group of cases v. Turkey concerning mainly the continuous denial of access to property in the northern part of Cyprus and the consequent loss of control thereof; the Kakoulli and Isaak groups of cases v. Turkey, concerning the 1996 killings of Greek Cypriots by Turkish or Turkish-Cypriot security forces. In 2021 the CM also continued to examine another past conflict-related case, Catan and Others v. Russia, concerning primarily violations of the right to education in Latin-script schools located in the Transnistrian region of the Republic of Moldova.

Last but not least, particularly challenging are the “Article 18” cases concerning abusive limitations of rights and freedoms enshrined in the ECHR. As of end 2021 there were 13 such cases pending before the CM concerning five member states: Azerbaijan, Georgia, Russia, Turkey and Ukraine (see details on p.17 of the 2021 Annual Report). Such cases have compounded the complexity of  the CM supervision process. They concern mainly the arrest, detention and, in some cases, conviction of civil society activists and politicians, aiming ultimately to their silencing. They are also linked to serious, structural issues concerning the independence and impartiality of the national judicial systems. In 2021 the CM recorded a positive development in the Mammadli (former Ilgar Mammadov) group of cases v. Azerbaijan. In one case of this group (Rashad Hasanov and Others), the Supreme Court of Azerbaijan quashed the criminal convictions of the four applicants, discontinued criminal charges and awarded them compensation for unlawful arrest and imprisonment. 

In Ilgar Mammadov v. Azerbaijan, the CM initiated in 2017, for the first time, infringement proceedings against Azerbaijan, under Article 46§4 ECHR, due to the respondent state’s refusal to abide by the Court’s judgment. These proceedings were successful, as far as individual measures are concerned, given that  in 2020 the Supreme Court of Azerbaijan quashed the conviction of the applicant (and of Rasul Jafarov) and awarded non-pecuniary damages for the unlawful arrest and imprisonment.

In February 2022 the CM initiated infringement proceedings, for the second time in its history, in Kavala v. Turkey and as of late March 2022 the case was pending at the ECtHR under Article 46§4 ECHR. Earlier in 2021 the CM had examined the case in all four Human Rights meetings and at each regular CM meeting after March 2021, calling for the applicant’s immediate release. Also, a letter was sent by the Chair of the CM to his Turkish counterpart expressing deep concern and the expectation that the applicant would be released in line with the ECtHR judgment.

Concluding remarks

Françoise Tulkens, a former, eminent judge at the ECtHR had incisively remarked that a judgment of the ECtHR “is not an end in itself, but a promise of future change, the starting-point of a process which should enable rights and freedoms to be made effective”. Indeed a judgment by any court would have little, if any value, if it were not promptly, fully and effectively implemented. In many cases the full and effective execution of ECtHR judgments has proven to be an arduous, complex and long process. This is linked to the fact that the ECHR has evolved into a “constitutional instrument of European public order” (see 2004 CM Declaration) and the full and effective execution of the ECtHR judgments often requires not only the initiation of complex changes of domestic case-law, legislation, or even constitutions, but often also a shift in national, dominant socio-legal cultures where ECHR standards are not yet fully embedded.

While the ECHR system and its oversight mechanism are still considered to be robust, there is no doubt that the complexity of cases that arrive and are pending for supervision by the CM is on the rise. This was made more evident in 2021 when the CM examined a record high number (161) of cases at its four Human Rights meetings, and by the initiation by the CM in February 2022, for the second time ever, of infringement proceedings against a state for refusal to abide by a ECtHR judgment, thus demonstrating a clear political determination to defend and preserve the effectiveness of the ECHR system.

In addition, the persistence for many years of several structural and systemic problems at national level, as noted above, indicates that redoubled efforts are necessary for the rapid and effective execution by states of the ECtHR judgments. The 2021 Annual Report (chapter II) makes clearer that institutional reforms are necessary at national level in order to further enhance the states’ capacity for rapid execution of the ECtHR judgments. This cannot be achieved without the systematic advancement of knowledge of the Convention system among all national, state and non-state, stakeholders so that all decisions taken at national level are ECHR-compliant. As noted in the 1950 ECHR preamble, the maintenance of the fundamental freedoms enshrined in the Convention depends on their “common understanding and observance”. Despite the human rights advances that have been achieved since 1950, the new horrific conflict that erupted in Europe in February 2022 and its dramatic consequences for millions of human lives reminded that the further realisation of human rights and freedoms on the Old Continent is a long and winding path. There is no doubt though that it rewards those willing and able to follow it.

* The author is Head of Division of the Department for the Execution of ECtHR Judgments, DGI, Council of Europe. All views expressed in this paper are strictly personal.