Monday, 3 October 2022

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.

Monday, 26 September 2022

Introducing Our New Assistant Editor

Dear readers of the ECHR Blog, we are very pleased to inform you that the editorial team of our blog will be expanded. As of this week, Matilda Rados is joining us as assistant editor.
 
Matilda Rados is junior lecturer in international law and human rights at Utrecht University and editor in chief of the Utrecht Journal of International and European Law. She is currently coaching the Utrecht University team of the Helga Pedersen Moot Court Competition. Matilda specializes in the ECHR and transitional justice.
 
We are very happy to add Matilda to this blog's editorial team. Together we will run the blog, add new items and can be approached for any ECHR-related conference announcements, publications, etc. Matilda, welcome on board! 
 
Kind wishes, Antoine Buyse and Kushtrim Istrefi
 

Tuesday, 20 September 2022

New Court Vice-Presidents and Section Presidents

The election of the Court's new President yesterday entitled a reshuffling of a number off other key functions within the European Court of Human Rights. In the same plenary meeting yesterday, the Court's judges elected amongst themselves 
two new Vice-Presidents and two Section Presidents of the Court. The two new Vice-Presidents are Georges Ravarani, judge in respect of Luxembourg, and Marko Bošnjak, judge in respect of Slovenia. The two new Section Presidents are Pere Pastor Vilanova, judge in respect of Andorra, and judge Arnfinn Bårdsen, judge in respect of Norway. These judges will take up their duties on 1 November. Good luck to all of them! The full composition of the European Court of Human Rights can be found here.

Monday, 19 September 2022

Siofra O'Leary New President of the Court

Today, the European Court of Human Rights has elected Síofra O’Leary, judge in respect of  Ireland, as its new President. Síofra O’Leary is the very first female President since the creation of the European Court of Human Rights. 

She joined the Court in 2015 and became section president as well as vice-president of the Court at the start of this current year. After having studied law in Ireland in the 1980s, judge O'Leary wrote and defended her PhD at the European University Institute in Florence and subsequently was connected to universities in the United Kingdom and Ireland. For the almost two decades before joining the Strasbourg Court, she worked in European Union Law at the sister Court in Luxembourg, where she was Référendaire, Chef de Cabinet and Head of Unit. With this strong previous background in EU law and her extensive experience on the Convention, she might be the perfect fit for the era that may, if negotiations this time go well, lead to the generations-long-awaited accession of the EU to the ECHR. Who knows what the future will bring.

Judge O’Leary will succeed the Court's current President Robert Spano  on 1 November 2022. Good luck to the Court's new President!

Friday, 16 September 2022

Russia No Longer a Party to the ECHR as of Today

Today, 16 September 2002, presents a sad landmark: the Russian Federation ceases to be a party to the European Convention on Human Rights. Exactly half a year has passed since Russia was excluded from the Council of Europe following its invasion of Ukraine. 

And even if the European Court of Human Rights still is competent to deal with applications against Russia concerning actions or omissions occurring up until today, it cannot be denied that this is a huge loss: the protective umbrella, even if it was not fully able to protect people against human rights violations, will no longer be there. As the picture shows, a huge territory now falls outside the geographical scope of the ECHR. It can no longer be said, as many of us teaching on the Convention were used to, that the ECHR applies from Reyjavik to Vladivostok. Much more importantly, more than 140 million people can no longer turn to the European Court of Human Rights, nor invoke the ECHR in domestic courts, for any new violations of the Convention.

And of course, there are currently still 17,450 applications against Russia   pending before the Court. And Russia also has a continuing legal obligation to still implement past judgments as well as those following from these applications, but the practical prospects seem dim. The same goes for cooperation with the Committee of Ministers. All of this in spite of the words that mean to inspire some small sense of hope from the Secretary-General of the Council of Europe, who also called for a halt to the war and to suppression in Russia itself: 

'The Council of Europe will continue to support and engage with human rights defenders, democratic forces, free media and independent civil society in the Russian Federation. Our hope is that, one day, Russian citizens will once again be able to enjoy the protection of the European Convention on Human Rights.' 

The European Court for its part took formal notice earlier this month of the fact that the office of a judge in respect of the Russian Federation also ceases to exist as of today. See also our earlier guest post on what could happen with the pending cases here.

Let us hope that one day the situation will have changed for the positive again so that the ECHR will again protect all people within the Russian Federation too. And for all those suffering from the Russian aggression in Ukraine, the Committee of Minsters re-affirmed yesterday in a decision that there should be no impunity for the crimes committed there. For now, 16 September 2002 stands as a sad day for human rights.

Friday, 9 September 2022

New Book on Environmental Rights and the European Court

Natalia Kobylarz (Senior lawyer at the registry of the European Court of Human Rights) and Evadne Grant (Associate Lecturer at the University of the West of England) have co-edited and just published the book, which is also a special issue of the Journal of Human Rights and the Environment, entitled Human Rights and the Planet. The Future of Environmental Human Rights in the European Court of Human Rights, with Edward Elgar. This is the abstract:

'Adopted in the aftermath of the Second World War and implemented as a ‘living instrument’, the European Convention on Human Rights has, over the past 70 years, shown remarkable adaptability to changing circumstances through the evolutive jurisprudence of the European Court of Human Rights. While the Court has already demonstrated its willingness to address new challenges to human rights arising from environmental damage and climate change, growing scientific evidence and mounting public demand for action have accelerated the need for more fundamental engagement. This timely book – also a Special Issue of the Journal of Human Rights and the Environment – brings into sharp relief the specific challenges faced by the Court in addressing the human rights impacts of the interlocking environmental and climate crises.

Leading scholars and practitioners, including the President of the European Court of Human Rights, provide important insights into current thinking about environmental human rights in different jurisdictions and ways in which the European Court could adapt its principles and practice in light of the evolving international environmental human rights corpus iuris.

Drawing together theoretical insights and practice-led commentary, the contributions to this important book will be of interest to human rights and environmental law scholars, practitioners, students and policy makers.'

Tuesday, 6 September 2022

MOOC on ECHR Starts Again on 7 September

Utrecht University's free Massive Open Online Course (MOOC) on the ECHR is starting again this week, on 7 September. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by myself (Antoine Buyse) and my Utrecht University colleagues professor Janneke Gerards and Claire Loven. This is the abstract of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'


Please watch this short introduction video to get an impression:

Friday, 2 September 2022

New Book on Effective Domestic Remedies and the European Court of Human Rights

Michael Reiertsen has published the monograph Effective Domestic Remedies and the European Court of Human Rights: Applications of the ECHR Article 13 with Cambridge University Press. Here is the abstract:

'In Malone v. UK (Plenary 1984), the right to an effective domestic remedy in the European Convention on Human Rights Article 13 was famously described as one of the most obscure clauses in the Convention. Since then, the European Court of Human Rights has reinforced the scope and application of the right. Through an analysis of virtually all of the Court's judgments concerning Article 13, the book exhaustively accounts for the development and current scope and content of the right. The book also provides normative recommendations on how the Court could further develop the right, most notably how it could be a tool to regulate the relationship between domestic and international protection of human rights. In doing so, the book situates itself within larger debates on the enforcement of the entire Convention such as the principle of subsidiarity and the procedural turn in the Court's case law.'

Monday, 29 August 2022

Conference on Effective Application of ECHR in Areas of Conflict in Europe

On 1 September, the Irish Centre for Human Rights and the School of Law at NUI Galway are hosting a conference on the topic of Lighting the Shade: Effective Application of ECHR in Areas of Conflict in Europe. The conference will take place in person but will be streamed live.

The event will examine the practice of the Council of Europe’s human rights system in European territories where the Council of Europe mechanisms cannot function freely and effectively from both normative and operational perspectives. Speakers will consider how the system might be better leveraged to improve the effectiveness of the European Convention on Human Rights throughout Europe.

The Conference is being organised within in the framework of Ireland's Presidency of the Council of Europe Committee of Ministers, and will feature influential speakers from the Council of Europe, governments, courts, civil society, and academia.

The full programme and registration link can be accessed here.

Friday, 26 August 2022

Lawyers' Associations Now Also Explicitly Allowed to Make Rule 9 Submissions

The Council of Europe's communications department has reported a small but significant change in the practice surrounding the supervision of implementation of judgments of the European Court of Human Rights. Under the so-called Rule 9 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, National Human Rights Institutions (NHRIs) and Non-Governmental Organisations are allowed to make submissions. These rules have now apparently been updated (although not yet visible on the website) to make explicit that, in the words of the communcations department "bar associations, law societies and other lawyers’ groups can make formal submissions concerning the implementation of #ECHR judgments." One can imagine this may be of importance in any issues related to Article 6 ECHR cases on fair trial rights ,of course, but also much more broadly - a good development.

Tuesday, 23 August 2022

New Book on the Right to Property in the ECHR

Douglas Maxwell has published the monograph The Human Right to Property. A Practical Approach to Article 1 of Protocol No.1 to the ECHR with Hart Publishing. This is the abstract:

'This book provides a highly detailed, practical analysis of Article 1 of Protocol No.1 (A1P1) and its implications in the United Kingdom. A1P1 prescribes a qualified right to the peaceful enjoyment of 'possessions'. This right corresponds to a negative limit on legislators and public authorities to rationalise interferences with possessions and, where necessary, to strike a fair balance, often requiring just compensation.

Through lively and rigorous commentary on the latest advances made by the European Court of Human Rights and domestic courts, The Human Right to Property enriches current understanding of the peaceful enjoyment of property since the enactment of the Human Rights Act 1998. Exploring the theoretical and political foundations of A1P1, the book guides the reader through the relevant case law from the earliest developments in Strasbourg to the present day. The Human Right to Property concludes that the most significant impacts of A1P1 are that it: forces States to justify interferences; limits radical redistributions of property; and casts a wider shadow over legislative choice and public body decision-making.'

Monday, 22 August 2022

New Book on Immigrants and the European Court of Human Rights

Amanda Spalding of Canterbury Christ Church University, in the United Kingdom, has published the new book The Treatment of Immigrants in the European Court of Human Rights. Moving Beyond Criminalisation, with Hart Publishing. This is the abstract:

"This book looks at how the European Court of Human Rights has addressed the question of immigration. As immigration in Europe has increased, so has its criminalisation. This is a multi-faceted phenomenon, with criminal justice and harsh use of immigration measures becoming more and more entwined. This book asks: how has the European Court of Human Rights responded? Drawing on case law from across the spectrum of rights, it will show how effective it has been in countering detention and deportation, if at all. This makes an original contribution to growing focus on 'crimmigration'."

Tuesday, 16 August 2022

The Range of Solutions to the Russian Cases Pending before the European Court of Human Rights: Between ‘Business as Usual’ and ‘Denial of Justice’

By
Kanstantsin Dzehtsiarou, University of Liverpool
 
Exactly in a month time, on 16 September 2022, Russia will no longer be a party to the European Convention on Human Rights (ECHR or Convention). The European Court of Human Rights (ECtHR, Court) will have no jurisdiction over human rights violations that will happen after that. It does not mean that the ECtHR will stop accepting applications against Russia immediately on 16 September 2022 as often victims of human rights violations have to go through national legal remedies and this can take months or even years. It will be mostly for the Court to decide how to treat the applications against Russia both pending now and those arriving after 16 September 2022. The Court already had at least five months to clarify this, but no publicly available decision has been taken yet and it will perhaps be a last-minute compromise between judges. The reason for this delay is that this question is complex in terms of its consequences for the Court, for the victims of human rights violations and for the Council of Europe as a whole.

As of 30 June 2022, there were 17,550 pending applications from Russia. Although the vast majority of these cases are most likely repetitive or inadmissible, there are some complex and high-profile cases including over a dozen of inter-state applications. So, what should the Court ‘do’ with the pending applications? The ECtHR has a few plausible solutions to this challenging problem:

1. ‘Business as usual’

The Court can continue dealing with all pending Russian cases. There is an expectation under the Convention that the Court decides every application that is submitted to it. However, this rule has exceptions (for instance, if the applications that do not comply with certain formal rules they are not even accepted or registered) and the decision-making process at the Court is not accompanied by any fixed timeframe. So, the Court can deal with these cases for years and years as it often does currently. It seems that the ECtHR will be able to dispose clearly inadmissible applications fairly easily and quickly because this process does not normally involve the respondent state and it is done by a single judge or committee in more complex cases. However, dealing with more important meritorious applications will be much more difficult within the ‘business as usual’ model for the following reasons: first, it is clear that the Russian authorities will not collaborate with the Court. For the Russian authorities, only the judgments that entered into force on 16 March 2022 should be enforceable. However, it seems that for the Russian authorities this only include monetary compensation. There will be no further collaboration with the Committee of Ministers on any issues of implementation of general measures of pending judgments of the ECtHR. Although this is an arbitrary chosen position it will be very hard for the Council of Europe to change it in the current political climate. The collaboration of the respondent state with the Court is crucial not only because it increases the legitimacy of the judgments and facilitates the compliance with the principle of equality of arms but it allows the ECtHR to simply clarify certain issues that the applicant might have no knowledge of or access to. Moreover, pursuant to Article 26(4) ECHR, a judge elected on behalf of Russia should sit on the bench in Chamber and Grand Chamber cases. After 16 September 2022, judge Lobov must not be any longer a member of the Court. According to Article 20 ECHR, the Court shall consist of a number of judges equal to that of the Contracting Parties. When Russia is gone the Russian judge should be gone too. The ad hoc judge from the list submitted by the state can participate in the hearings but it is unlikely that any of the ad hoc judges from the Russian list will be willing or ‘allowed’ to participate. The Court can of course allocate any of the sitting judges to act as a ‘Russian judge’ in a particular case as it did in the ‘foreign agents’ case in which Judge Serghides elected on behalf of Cyprus acted as an ad hoc judge from Russia. This tactic has a questionable legality and legitimacy if the provisions of the ECHR are taken seriously. Article 24(4) states that

"There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge."

There will be no sitting judge from Russia and it is highly unlikely that anyone from the list of ad hoc judges will be willing to sit. So, the Court will have to decide cases without the Russian judge and without the input from the respondent state. A one-of departure from the rule enshrined in Article 24(4) is not perhaps catastrophic but a systematic bypassing of this norm might undermine the legitimacy of the Court’s processes.

The second reason why the ‘business as usual’ model is suboptimal is that it will take a lot of resources from the Court in the circumstances when the budget of the organisation will be significantly reduced by the departure of Russia, who has been a major contributor to the budget of the Council of Europe. The resources spent on the cases from Russia will be arguably taken from other cases in relation to situations where the Court can make a significant and meaningful impact. And this leads me to the final and perhaps the most important reason. The Russian authorities will not implement any of the judgments that entered into force after 16 March 2022. The argument that execution of these judgments can be used as a condition for the return of Russia into the organisation is not particularly convincing as there is no indication that Russia is going to come back any time soon. Moreover, there are plenty of unenforced cases at the moment and the currently available unexecuted judgments pending before the Committee of Ministers can make a solid basis for a conditional return of Russia to the Council of Europe.

Finally, I have to mention that the victim-centric approach would perhaps support the ‘business as usual’ model as in this case the ECtHR will at least confirm that human rights violations have taken place. Having said that, this acknowledgement will not lead to any tangible changes: the applicants will not even receive the monetary just satisfaction from the respondent state. This might increase the feeling of frustration and hopelessness rather than provide any satisfaction.

2. ‘Pick and choose’

Another possible solution to the Russian docket of cases at the ECtHR can be a ‘pick and choose’ model. This way, the Court will select a number of leading cases which would perhaps include inter-state cases, sensitive political cases and the cases exemplifying the structural legal problems in Russia and deliver judgments in these cases.

Within this model the Court can use the so-called Burmych scenario. The judgment in Burmych v Ukraine was a follow-up judgment to the pilot case of Ivanov v Ukraine. In this case the Court ruled that non-execution of the final national judgments is a violation of Article 6 of the ECHR and that the delay in execution should be covered by an appropriate compensation. In Burmych the Court decided that there is no point in keeping producing judgments in clone cases and transferred all applications dealing with the same issue to the Committee of Ministers. Applying this approach to the pending Russian cases, the Court can pick the key complaints on broadly defined themes, then attach similar applications to this leading case and then transfer all of them to the Committee of Ministers without giving separate judgments in each individual case. One of the drawbacks of this approach is that it will cement the questionable principle applied in Burmych as a modus operandi of the Court.

This model would highlight the key problematic areas and give some satisfaction to some victims. It would also be a less resource-consuming than the ‘business as usual’ model but this approach would not be able to solve other problems highlighted in the previous paragraph such as lack of Russian engagement and probably total short-term ineffectiveness of such judgments. It also creates a new challenge: the Court can be accused of a selection bias. The ECtHR will perhaps have to justify why some cases are selected while some others are not.

3. ‘Total freeze’

Total freeze is one of the quicker and more radical solutions available to the ECtHR. The Court can suspend the adjudication of all applications against Russia until the situation changes. The President of the ECtHR has already briefly suspended examination of Russian cases before this suspension was lifted by the Plenary of the Court. This means that suspension is a possible avenue for the Court. This suspension can take at least two forms – either a total freeze of all pending applications or a rejection of all clearly inadmissible applications and then freezing of all meritorious ones. Both of these solutions would save a lot of resources for the Court, it will remove the need for a ‘deemed to fail’ collaboration with Russia and will not require the Court to select the ‘lucky’ applications to deal with. However, no victim will get even moral satisfaction from the fact that the ECtHR found their rights violated but one can argue that this moral satisfaction is not enough for an operation of a judicial organisation. The ECtHR is not an archive that systematises the human rights violations in Russia. It is a judicial institution. The legitimacy of the Court depends on the effective implementation of its judgments and no implementation can be expected from the judgments against Russia.

4. ‘Strike out’

The clearest and the most radical solution would be striking out all the applications against Russia pending before the ECtHR. Pursuant to Article 37(1)c ECHR, the ECtHR can strike out any application for any reason if it is no longer justified to continue the examination of the application. The Convention provides very wide discretion to the Court here. The ECtHR can decide that in the current situation the delivery of judgments will make no impact and therefore all of the applications should be excluded from the list of pending cases. However, this option is not very likely. It was just decided by the ECtHR that the Convention is applicable to Russia for 6 months after Russia ceased to be a member of the Council of Europe. This decision was not the only plausible interpretation of Article 58 ECHR that regulates the denunciation of the Convention. This would have been irrational if immediately after taking this decision, the Court disposed all applications, including of those which were submitted in relation to the violations that happened between 16 March and 16 September 2022. It is also unlikely that the Court would do it for political reasons – it can be seen as a complete denial of justice for a vast number of victims. So, this option is not plausible at least in the short run.

Conclusion

Neither ‘business as usual’ nor ‘strike out’ models are very plausible. It is more likely that the Court will chose some combination from the spectrum between the ‘pick and choose’ and ‘total freeze’ models. In making this decision, the Court will have to weigh the importance of symbolic judgments against Russia and the amount of resources and legitimacy that will be required to deliver these judgments. These resources might be needed in other areas and in relation to other situations.

Friday, 1 July 2022

One Judge, Three Questions Video Series

Earlier this week, the new judge in respect of Ukraine (on which we reported earlier here) was sworn in at the European Court of Human Rights: Mykola Gnatovskyy, former member and president of the European Committee Against Torture. For the Court itself, this was also the occasion to launch a new video series, of which the first episode, featuring the new judge, hasn't ow been published online. The series is called: One Judge, Three Questions, and serves as a very short getting-to-know new judges:

Thursday, 30 June 2022

Opening of the Judicial Year

Last week, on 24 June, the formal opening of the judicial year of the European Court of Human Rights took place in Strasbourg. The dual event, slightly deferred due to the pandemic, started with a seminar for judges of Europe's highest courts on the apt topic of 'Human rights protection in the time of the pandemic: new challenges and new perspectives'

Subsequently a special ceremony, or solemn hearing, took place to open judicial year 2022. Speeches were held by the Court's President, Robert Spano, by the President of Greece, Katerina Sakellaropoulou, addressed representatives from the highest courts of the member States of the Council of Europe, and by Dunja Mijatović, the Council of Europe's Commissioner for Human Rights (see also the photo). Their respective speeches can be read by clicking on the hyperlinks over their names.

The Greek President reminded the audience of the special history of Greece vis-à-vis the Convention system, with the hiatus of the military regime. Court President Spano not only gave on overview of the Court's main judgments of the past year, but also issued a stark warning:

"A Europe in which the separation of powers has been eroded by those in power; A Europe where sustained public expressions of hostility or outright refusal to abide by court judgments are commonplace; A Europe where judges are simply unable to do their jobs independently and impartially for fear of reprisals or attacks resulting in unfettered governmental power: This is a Europe in which the rule of law is at risk of disappearing. This is a Europe in which we will no longer be free, as recent events have once again shown us."

The Commissioner, in turn, pointed to the erosion of the rule of law, called upon states to no longer procrastinate in implementing human rights obligations under the Convention, and emphasised that "member states should make better use of the tools of the Organisation to exert the necessary pressure to ensure respect for democracy, human rights and the rule of law by their peers."

Tuesday, 14 June 2022

Invoking Subsidiarity to Weaken ECHR Protection in the UK

Guest post by Katie Lines

Introduction

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

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

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

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

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

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

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

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

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

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

The current Human Rights Act

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

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

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

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

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

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

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

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

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

Friday, 20 May 2022

New ECHR Readings

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

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

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

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

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

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

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

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

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

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

Thursday, 19 May 2022

Kosovo Applies for Council of Europe Membership

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

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