New Thematic Factsheet on Reproductive Rights

The Council of Europe's Department for the Execution of Judgments of the European Court of Human Rights has just issued a new thematic factsheet on how judgments of the Court have helped to protect and advance reproductive rights. 

Here is a brief description:

'Under the European Court’s case law, the notion of “private life” within the meaning of Article 8 (right to respect for private and family life) of the European Convention on Human Rights incorporates the right to respect for both the decisions to become and not to become a parent. Thus, the European Court addresses under Article 8 issues related to the protection of reproductive rights, such as prenatal medical tests, medically assisted procreation, access to abortion, sterilisation procedures and protection of medical data. In some cases, the Court also examined issues related to the protection of reproductive rights under other Articles, such as Article 3 (the prohibition of torture or inhuman or degrading treatment or punishment), Article 6 (regarding the right of access to a court), Article 10 (freedom of expression), Article 14 (prohibition of discrimination), or Article 1 Protocol No. 1 (protection of property).

Under the European Court’s case law, the notion of “private life” within the meaning of Article 8 (right to respect for private and family life) of the European Convention on Human Rights incorporates the right to respect for both the decisions to become and not to become a parent. Thus, the European Court addresses under Article 8 issues related to the protection of reproductive rights, such as prenatal medical tests, medically assisted procreation, access to abortion, sterilisation procedures and protection of medical data. In some cases, the Court also examined issues related to the protection of reproductive rights under other Articles, such as Article 3 (the prohibition of torture or inhuman or degrading treatment or punishment), Article 6 (regarding the right of access to a court), Article 10 (freedom of expression), Article 14 (prohibition of discrimination), or Article 1 Protocol No. 1 (protection of property).

The present factsheet provides examples of general and individual measures reported by States in the context of the execution of the European Court’s judgments, concerning the: protection of mothers against discrimination, access to medically assisted procreation, regulation of home births, recognition of parent-child relationship in cases of surrogate motherhood, access to lawful abortion and to information on abortion, non-consented sterilisation, protection of personal data and access to medical records, and other issues.'

New ECHR Readings

In the last batch of readings of 2023 related to the European Convention on Human Rights and its Court, please find our selection below. We wish all our readers a good holiday season!

* Helen Keller and Viktoriya Gurash, ‘Expanding NGOs’ standing: climate justice through access to the European Court of Human Rights’ Journal of Human Rights and the Environment (2023), vol. 14, no. 2, p. 194-218:

 

‘Due to the nature of environmental litigation, expanding the standing of actors that could bring claims to the European Court of Human Rights (ECtHR) – such as non-governmental organizations (NGOs) – has become a pressing need. This article explores the current approach to NGOs’ standing to bring environment-related claims before the ECtHR. In particular, by drawing on the Aarhus Convention, the article explores NGOs’ important role before the ECtHR given their recognized right to environmental information, as well as their role in upholding the right to a fair trial at national level. In conclusion, it is argued that NGOs should be given a more prominent role in environmental cases and that the dichotomy between the case law regarding NGOs’ standing in claims under Articles 2, 3 and 8 on the one hand, and Articles 6 and 10 on the other, is outdated.’

 

* Helga Molbæk-Steensig and Alexandre Quemy ‘Judicial Independence and Impartiality: Tenure Changes at the European Court of Human Rights’, European Journal of International Law (2023), vol. 34, no. 3:

 

‘Judges should be impartial and independent, judging based solely on the law. Current constitutional literature suggests an important factor in securing this may be the length of tenure. The assumption is that judges with non-renewable terms are more independent than judges with renewable terms since they do not have to worry about reappointment, but proving this assumption empirically is not straightforward. Obstacles include difficulties in comparing different courts and the fact that there is often no obvious case outcome that proves independence. This article aims to overcome these obstacles with a mixed-methods study on the European Court of Human Rights during a time when the tenure rules changed. The study goes beyond the counting of votes and analyses the arguments used in separate opinions as indicators of independence. Our main findings are that, after the introduction of non-renewable terms, judges write more opinions overall, and more of them criticize the judges’ appointing states, while fewer defend it. We also find that judges on non-renewable terms are on average more likely to write opinions addressing violations as systemic problems and to use their opinions to provide guidance for their appointing states on implementing judgments and improving human rights protection.’

 

* Patrick Leisure, ‘Europe's Schoolhouse Gate? Strasbourg, Schools, and the European Convention on Human Rights’, Stanford Journal of International Law (2023), vol. 59, no. 2: 

 

‘Yale law professor Justin Driver's 2018 book, The Schoolhouse Gate, argues that American public schools have served as the most important sites of constitutional conflict in United States history. This Article, inspired by Driver's work, argues that primary and secondary schools similarly serve as some of the most significant forums of human rights conflict in the Council of Europe. In support of this argument, the Article adopts a two-tiered analysis. The first is court-centric, focusing primarily on the jurisprudence of the European Court of Human Rights involving schools. The second is society-centric and homes in on the crossroads at which the European Court of Human Rights, schools across the Council of Europe, and European societies meet. By making the above claim regarding the centrality of schools, this Article hopes not only to spur on further discussion about human rights within Europe's schoolhouse gate, but also to deepen the conversation regarding how schools as institutions interact with European supranational human rights protections.’

   

* Cosette D Creamer and Zuzanna Godzimirska, ‘Trust, Legal Elites, and the European Court of Human Rights’, Human Rights Quarterly (2023), Vol. 45, no. 4:

 

‘This article interrogates institutional sources of trust distinct to the European Court of Human Rights (ECtHR). Drawing from interviews with ECtHR officials and legal elites, the article identifies practices related to access, procedure, and performance that are central to direct stakeholders' evaluations of judicial trustworthiness. Elite trust is necessary for the continued operation of judicial bodies, and these stakeholders act as intermediaries with the potential to shape public perceptions. The article's findings have important implications for ECtHR's continued relevance, especially given the mounting resistance to it in recent years.’

* Ottavio Quirico, ‘Sources of EU Law: A Review in Light of the Accession of the Union to the ECHR - A Matter of Principle’, Hungarian Yearbook of International Law and European Law (2023):

 

‘The accession of the EU to the ECHR raises several problems. This article argues that procedural problems are fundamentally rooted in substantive issues, with specific regard to the sources of EU law. More precisely, in order to allow accession, it would be essential to review Article 6(3) TEU so as to lower the level of the ECHR as a source of general principles of EU law to (at least) the same hierarchical level as the founding treaties. Yet, while this solution can be satisfactory for EU Member States that are parties to the ECHR and its protocols, it is not necessarily appealing to non-EU States that are parties to the ECHR system, similar to the stall generated by the Energy Charter Treaty in the field of investment. Furthermore, the solution fundamentally clashes with the consolidated priority of the general principles of EU law crystallized in cases such as Kadi.’

* Sergio Salinas Alcega, ‘The Invasion of Ukraine from the Point of View of the European Court of Human Rights: Extraterritorial Responsibility of Russia and (Un)Control of International Humanitarian Law’, Revue Québécoise de Droit International (2023):

 

‘The negative impact of the invasion of Ukraine by Russia on international law has many dimensions, the massive and flagrant violation of human rights being one of the most relevant. From this perspective, the role of international mechanisms for the protection of these rights, and notably the European Convention system and the European Court of Human Rights (ECtHR), has become particularly important. The Strasbourg Court’s approach can be divided into two different aspects, which are obviously interrelated. The main aspect relates to the scope of the European Convention on Human Rights’ (ECHR) responsibility regarding Russia. Considering that relevant acts are committed by Russia outside its territory, the question of the extraterritorial application of the Convention becomes crucial. The second aspect relates to how the Strasbourg judges see the interplay between the ECHR and international humanitarian law, and especially their role in exercising a certain amount of control over the latter’s application. Here, the Court could help remedy the shortcomings that currently exist in terms of the availability of specific mechanisms to demand responsibility from the States for the violation of norms in this domain of international law. Regarding both aspects, there is already a rich and developing Strasbourg jurisprudence even if, of course, it is not exempt from criticism. The acts committed by Russia in Ukraine may make it possible to revisit this jurisprudence and allow it to overcome certain shortcomings which have been identified.’

 

* Aikaterini Tsampi, ‘Islandness and the European Court of Human Rights: Marooning Rights on Islands?’, Netherlands International Law Review (2023), vol. 70 no. 2:

 

‘Some 80 million people live on European islands. It thus comes as no surprise that a number of cases brought before the European Court of Human Rights developed on and/or pertain to islands. What is surprising, though, is that this jurisprudential corpus has not been explored with a view to assessing whether islandness has or should have a role in the implementation of the European Convention on Human Rights on islands. The present paper contemplates the strengths of an islandness-based approach in the implementation of human rights through the mapping of the weaknesses, the potentials and the lost opportunities in the case law of the Court with respect to such an approach. In this context, findings from the field of Island Studies are also considered. By focusing on the ECHR habitat, the present paper exemplifies, in particular, the untapped potential of an islandness-based approach in the development of international human rights law in general.’

New Book on Compliance with ECtHR Judgments

Ramute Remezaite (European Human Rights Advocacy Centre, School of Law, Middlesex University) has just published a new book entitled Compliance with Judgments of the European Court of Human Rights: States on a Spectrum of Democratisation. This is the abstract:

'What does compliance with judgments of the European Court of Human Rights (ECtHR) look like in states on the spectrum of democratisation? This work provides an in-depth investigation of three such states—Armenia, Azerbaijan and Georgia— in the wider context of the growing 'implementation crisis' in Europe, and does so through a combined lens of theoretical insights and rich empirical data.

The book offers a detailed analysis of the domestic contexts varying from democratising to increasingly authoritarian tendencies, which shape the states’ compliance behaviour, and discusses why and how such states comply with human rights judgments. It puts particular focus on ‘contested’ compliance as a new form of compliance behaviour involving states’ acting in ‘bad faith’ and argues for a revival of the concept of partial compliance. The wider impact that ECtHR judgments have in states on the spectrum of democratisation is also explored.'

New Book on the ECHR and the Western Balkans

Venera Kabashi (University of Zurich) has just published her dissertation entitled The ECHR and the Western Balkans: Bringing the Convention Home. The book is published by EIZ (Europa Institut an der Universität Zürich) Publishing and is available as an open access book. The dissertation analyses the impact and the effects of the Convention and the case-law of the Court in Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia and Serbia. 

This is the abstract:

'What does it ultimately take to bring the ECHR home in all Western Balkans States and embed it properly within these domestic legal orders? This is the main query of this PhD thesis. How have the domestic courts and other domestic authorities reacted following violations found at the Strasbourg level in respect of their State? How often do the highest domestic courts in the Western Balkans engage in Convention talk and what is the quality of such judicial dialogue? What are the roles of the ECtHR and of the domestic courts in view of their shared responsibility to secure and ensure effective protection of Convention rights? When can the Strasbourg Court comfortably defer to the ratio decidendi of the domestic courts and other domestic authorities? What has been the impact and effects of the Convention and the ECtHR’s case-law in Albania, Bosnia and Herzegovina, Montenegro, Kosovo, North Macedonia, and Serbia? What are the good and not so good ECHR embeddedness practices that may be noticed across the Western Balkan States and what are the recommendations that this study suggests with a view to achieve better embeddedness/domestication of the ECHR? These are only some of the remaining research questions that are explored in this PhD monograph.'

Call for Contributions: European Yearbook on Human Rights 2024

The European Yearbook on Human Rights has issued a call for contributions for its 2024 issue. The Yearbook publishes mostly about the European Convention on Human Rights and the Council of Europe. It also contains sections on human rights in the European Union, the Organisation for Security and Co-operation in Europe as well as cross-cutting analysis and commentary.

Here is the description of the call:

'The European Yearbook on Human Rights is shedding light on current human rights topics of concern and the most pressing issues that impair human rights protection, the rule of law and democracy in Europe and beyond. With special sections dedicated to the three main organisations securing human rights in Europe (EU, Council of Europe and OSCE) as well as a section on cross-cutting issues the Yearbook provides muchneeded analysis and insightful commentary. 

The Yearbook is edited by Philip Czech (Austrian Institute for Human Rights, University of Salzburg), Lisa Heschl and Gerd Oberleitner (both European Training and Research Centre for Human Rights and Democracy, University of Graz), Karin Lukas (Department of Legal Studies, Central European University) and Manfred Nowak (Global Campus of Human Rights). It is published by Intersentia and all contributions are subject to a double-blind review process ensuring the highest academic standards. 

We welcome submissions concerning human rights developments within the major European institutions namely the EU, the CoE and the OSCE. Articles concerning a topic not related to one of the aforementioned institutions but dealing with current and topical human rights developments will be taken into consideration as well. 

Authors will be invited to submit full contributions based on an abstract (max 500 words) that should be send by 20 December 2023. Abstracts should be submitted with a short bio to lisa.heschl@uni-graz.at. 

The deadline for submitting the manuscript is end of March 2024.

For further information on the European Yearbook on Human Rights see https://www.larcier-intersentia.com/en/european-yearbook-human-rights-2023-9781839704161.html'

Lecture: 'Why the European Convention on Human Rights still matters'

On Thursday 30 November 2023, the President of the ECtHR Síofra O’Leary delivered the annual Mackenzie Stuart Lecture for Cambridge University's Centre for European Legal Studies on 'Why the European Convention on Human Rights still matters'. In the lecture President O'Leary discusses the relationship between the United Kingdom and the Convention, the role of the Convention as an instrument of peace and stability in Europe, the right to access to justice, the rule of law and the continued importance of the Convention in Europe and beyond. 

A recording of the lecture can be found here. 

NNHRR Interview on Climate Change Litigation before the ECtHR

Last week, Anmol Gulecha (Tilburg University) and Jolein Holtz (Leiden University) gave an interview to the Netherlands Network for Human Rights Research (NNHRR) on the case of Duarte Agostinho and Others v. Portugal and 32 Others, one of the three climate change cases currently pending before the Grand Chamber of the European Court of Human Rights. This case concerns the greenhouse gas emissions from 33 Member States of the Council of Europe. According to the applicants in the case, these emissions contribute to global warming and lead to heatwaves, affecting the applicants' health and living conditions. The interview provides some interesting comments on the case.

The interview is the first episode of the NNHRR #HumanRightsNow interview series which discusses current issues in International and European Human Rights Law. 

New Book on the Freedom of Religion or Belief in the ECHR

Caroline K. Roberts (Oxford Brookes University) has just published a new book entitled Freedom of Religion or Belief in the European Convention on Human Rights: A Reappraisal. This is the abstract:

''The right to freedom of thought, conscience and religion in Article 9 of the European Convention on Human Rights (ECHR) has become increasingly significant and contested. Through an examination of ECHR Article 9, its drafting history, and the related jurisprudence of the European Court of Human Rights (ECtHR), Caroline K. Roberts challenges the classic approach to this right in the literature. Roberts argues that claims that there is, or should be, a clear binary and hierarchical distinction between the absolutely protected internal realm and the qualified external realm in this right are not founded textually or jurisprudentially. Rather, the primary materials suggest that the internal and external aspects are deeply interrelated, and this is reflected in the ECtHR's nuanced and holistic approach to ECHR Article 9 protection. This comprehensive, rigorous and up-to-date reappraisal of ECHR Article 9 and the related ECtHR jurisprudence will be essential reading for academics and practitioners.''

Launch of the Open Council of Europe Academic Networks Project

The Council of Europe has launched the Open Council of Europe Academic Networks (OCEAN) project. The aim of the initiative is to strengthen co-operation between the Council of Europe and European universities and research institutions, and to promote the Council of Europe convention system through sharing and creating knowledge. OCEAN membership is open to universities as well as individual academics teaching at these institutions or conducting research independently. Membership is also open to research institutions (independent or as part of a university), university faculties and existing national and European academic networks working on issues related to Council of Europe conventions. 

This is a summary of the project:

'The Open Council of Europe Academic Networks (OCEAN) unite universities, research institutions and scholars from the Council of Europe´s 46 member states around the shared goal of human rights, democracy, and the rule of law.

Initiated in 2018 by Prof. Michele Nicoletti, then president of the Council of Europe Parliamentary Assembly, OCEAN is now ready to welcome academic members, institutional and individual, to join.

The Open Council of Europe Academic Networks aim at sharing and creating knowledge around the Council of Europe´s more than 200 conventions in European academia through teaching and research.

OCEAN provides a platform for connecting universities, research institutions and individual academics who focus on a Council of Europe convention of their choice or other topics related to the work and mission of the Council of Europe. It serves as a resource for information on Council of Europe activities; helps to share best practices and research; connects its members to the Council of Europe and its expert teams and gives them the opportunity to join events organised by OCEAN in Strasbourg or in Council of Europe member countries offline and online.

Institutional members are requested to organise a minimum of one academic activity per year – for example workshops, conferences, summer or winter schools – in the substantive fields described above. Individual members are required to take a leading role in the organisation of the above activities or publish an academic paper or book focused on a Council of Europe convention or other topics related to its mission.'

According to the FAQ about membership, the following is expected of members:

'OCEAN members choose at the beginning of their membership one or several Council of Europe conventions they are interested in. They are expected to engage in education, research, and other academic activities that promote these self-chosen conventions.

Universities, research institutions and networks are required to organise and carry out one academic activity per year (workshop, conference, summer or winter school…). Individual members are required to either engage in one of the above activities (as organiser or speaker) or conduct research or publish (article, book) on the chosen Council of Europe convention.'

More information about how to join the initiative can be found here. 

Changes to the Rules of Court, Including on Interim Measures

In the past few months, the Court has been initiating some changes to its Rules of Court. Several of the changes relate to both degrees of transparency: on the public character of documents (Rule 33 § 1 on this has been amended) and a new, connected  Rule (44F) on the treatment of 'highly sensitive documents' relating for example to national security interests of the state or "equally compelling interests" of an applicant.

The second set, of proposed changes in this case, relate to interim measures. The Court is in the proces of codifying its practice, also explicitly into the specific Rule 39 on interim measures. Earlier this month, the Plenary Court - so all judges together - provisionally adopted changes to Rule 39. States parties to the ECHR, specific organisations with experience in representing applications and relevant bar associations have now been asked by the Registrar to provide comments before 4 December. Depending on the input received the Court will subsequently amend or adopt the proposed changes. After this, the practice direction on interim measures will also be updated.

According to the Court's press release, the Plenary Court has also decided about the following:

'• Disclosure of the identity of the judges who render the decisions on interim measure requests;

• Maintaining the practice of providing reasons for Rule 39 decisions on an ad hoc basis and

issuing press statements where the circumstances of the cases so require;

• Issuing formal judicial decisions to be sent to the parties;

• Maintaining the established practice of adjourning the examination of the requests for interim measures and requesting the parties to submit information in those circumstances where the situation is not extremely urgent and where the information that the applicants could submit to the Court was not sufficient to enable the Court to examine the request.'

Article 39 currently reads as follows:

'1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.

2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.

3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.

4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.'

The proposal for the new text is the following:

'1.  The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings. The Court’s power to decide on requests for interim measures shall be exercised by duty judges appointed pursuant to paragraph 4 of this Rule or, where appropriate, the President of the Section, the Chamber, the President of the Grand Chamber, the Grand Chamber or the President of the Court.

2.  Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.

3.  A duty judge appointed pursuant to paragraph 4 of this Rule or, where appropriate, the President of the Section, the Chamber, the President of the Grand Chamber, the Grand Chamber or the President of the Court may request information from the parties on any matter connected with the implementation of any interim measure indicated.

4.  The President of the Court shall appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.'

For more background information and the basics, please consult this factsheet developed by the Court's registry as well as this video. The Rules of Court themselves , information on several specific aspects, as well as translations in a number of languages, can be found on a dedicated page on the Court's website.

New Online Course 'Interplay between the ECHR and the EU Charter of Fundamental Rights'

The HELP (Human Rights Education for Legal Professionals) Programme of the Council of Europe has launched the free online course 'Introduction to Human Rights Protection in Europe - The Interplay between the ECHR and the EU Charter of Fundamental Rights'. This six-hour online course focuses on the protection of human rights under the system of the Council of Europe with the ECHR, and under the European Union with the EU Charter of Fundamental Rights. The course consists of an introductory module and four substantive modules. A statement of accomplishment is obtained after completing the course. 

Here is the outline of the course:

Introductory Module: 

• Information about the course 

• Learning objectives 

• Welcome videos

Module 1: Introduction to Human Rights Protection in Europe

• Pioneers of Europe

• The Council of Europe (Conventions; Member States; key organs)

• The European Union (evolution; EU institutions, bodies, offices, agencies; EU accession to the ECHR)

• Recap

• The very different twins

• Knowledge check

Module 2: Protection of Human Rights within the Council of Europe and the European Union 

• The European Convention on Human Rights (introduction; rights and

freedoms; obligations; interpretation; implementation; supervision; execution)

• The European Social Charter (introduction; characteristics; interpretation; rights; monitoring; impact)

• The Charter of Fundamental Rights of the EU (sources of interpretation; level of protection; rights and principles; scope of application; limitations; rationale of Art 51; direct (vertical and horizontal) effect; who applies it?; beneficiaries; access to CJEU)

• General points and comparative perspective

• Recap

• Knowledge check

Module 3: Interplay 

• Evolution of the relationship between the ECHR and the EU law (foundations; journey towards recognition; convergence and interplay)

• Interplay (how do national judges apply the ECHR, the ESC, the EU Charter and national bills of rights?; how does the ECtHR monitor member states applying the EU law when ECHR rights are invoked?; how can conflicting scenarios be prevented and resolved?)

• Knowledge check

Module 4: Practical Implications

• Raising an issue of violation of rights (how can rights protected by the ECHR and/or the EU Charter be invoked before courts?)

• Jurisdiction of the ECtHR and the CJEU in respect of human rights violations

• From national to European courts: preliminary rulings and advisory opinions

• Recap

• Knowledge check

The course is freely available in self-learning format on the Council of Europe HELP platform.

Webinar on the ECtHR and Domestic Case-law Application

On 4 December 2023 from 10:00 to 12:00 CET, the European Lawyers Foundation (ELF) and the Council of Bars and Law Societies of Europe (CCBE) are organizing a webinar entitled 'The European Court of Human Rights and its case-law application at national level: How to enhance subsidiarity'. The webinar will discuss the principle of subsidiarity and the national implementation of the ECtHR's case-law. The program can be found here. 

You can register here. 

New Book on the ECtHR and the Norm against Torture

Ezgi Yildiz (California State University) has just published a new book entitled 'Between Forbearance and Audacity: The European Court of Human Rights and the Norm against Torture'. This is the abstract:

'When international courts are given sweeping powers, why would they ever refuse to use them? The book explains how and when courts employ strategies for institutional survival and resilience: forbearance and audacity, which help them adjust their sovereignty costs to pre-empt and mitigate backlash and political pushback. By systematically analysing almost 2,300 judgements from the European Court of Human Rights from 1967–2016, Ezgi Yildiz traces how these strategies shaped the norm against torture and inhumane or degrading treatment. With expert interviews and a nuanced combination of social science and legal methods, Yildiz innovatively demonstrates what the norm entails, and when and how its contents changed over time. Exploring issues central to public international law and international relations, this interdisciplinary study makes a timely intervention in the debate on international courts, international norms, and legal change.'

The European Court of Human Rights and the Norm against Torture

New Session of MOOC on ECHR Starts Again on 2 November

In a week, on Thursday 2 November, Utrecht University's free Massive Open Online Course (MOOC) on the ECHR will start again! 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 my Utrecht University colleagues professor Antoine Buyse and professor Janneke Gerards. This is the description 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:

Systemic Problems Unveiled: The Yalcinkaya Case and the Demise of the Bylock Digital Evidence

By Dr. iur. Yasir Gökce

The Turkish Government has declared the Gülen Movement a terrorist organization and blamed the Movement for orchestrating the 2016 coup attempt. To identify the members of this organization, the Government has controversially decided that any individual who downloaded and/or used the ‘ByLock’ encrypted messaging application was part of the Gülen Movement and thus can be charged with terrorism membership. Thousands of affected individuals have found the measures to be erroneous and unlawful.

On 26 September 2023, the Grand Chamber of the European Court of Human Rights (Court or ECtHR) in Yalcinkaya v Türkiye examined the human rights implications of the use of the ByLock app. In this landmark judgment, the Court found a violation of Articles 6, 7 and 11 of the Convention. Referring to thousands of applications on its docket involving similar complaints, the ECtHR stressed that the problems which had led to findings of violations were systemic in nature and called on Turkey to take general measures as appropriate to address those systemic problems.

The case was lodged by the applicant, Mr. Yalcinkaya, who had been dismissed from his public service as a teacher with the state of emergency decree no 672 after the botched 2016 coup attempt and convicted of terrorism membership due to his alleged link with the Gülen Movement, an organization designated as terrorist by the Turkish Government. Such link was established in Mr. Yalcinkaya’s domestic penal proceedings from his alleged use of an electronic communication app, namely ByLock, his membership of a lawfully established trade union (Aktif Eğitim-Sen) and an association (Kayseri Voluntary Educators Association) and his use of a bank account.

In this contribution, I examine the analysis carried out by the European Court of Human Rights on the approach of the Turkish judiciary vis-à-vis the digital evidence under Articles 6, 7, 8, and 11 of the Convention, uncovering both what the Court well-appreciated and missed. The concluding paragraph elucidates why this judgment is of utmost importance for the human rights protection mechanism in Turkey.

The Court’s Findings under Article 7 of the Convention

Under Article 7 of the Convention, the ECtHR examines the ‘exclusive use’ argument of the Turkish government and its practical implications for the applicant. The government purports that the Bylock app was exclusively designed and used by the Gülen Movement for its secret communication needs, despite the fact that the app had been downloaded approx. 1 million times from open sources. Such narrative of the ‘exclusive use within a closed domain’ was dictated by the government on judicial authorities in the form of a technical expert report produced by the Turkish intel agency. Eventually, this narrative led the judicial authorities to summarily convict any individuals, including the applicant, whose digital footprints had been somehow discovered in Bylock servers, of terrorism membership, irrespective of the content of the messages exchanged or the identity of the persons with whom the exchanges were made (§ 258).

Against this backdrop, the Court first elucidates that, under the Turkish law and jurisprudence around terrorism membership, the elements of the crime are fulfilled “where the accused’s organic link with the armed organization is established, based on the continuity, diversity, and intensity of his or her activities, and where it is demonstrated that he or she acted knowingly and willingly within the organization’s hierarchical structure” (§ 184). The Court then reveals the automaticity and certainty with which the domestic courts equate the mere download and/or use of the Bylock app with the membership of an armed terrorist organization. In other words, an individual who allegedly used the app has met, as the Court reveals, the continuity, diversity, and intensity criteria, as well as the criterion of acting knowingly and willingly, prescribed in Turkish law (§ 264). Eventually, the Court concludes that the reliance on the mere use of the Bylock app without establishing the presence of the constituent material and mental elements of the offense in an individualized manner corresponds to an unforeseeable application of the law lying outside of what the law proscribes. Therefore, it holds that Turkey has violated the principles of legality and foreseeability as well as individual criminal responsibility, which are enshrined in Article 7 of the Convention (§ 267).

It is praiseworthy that the ECtHR examined the case within the ambit of Article 7 and to the extent that it concerns not only the applicant but all victims prosecuted and arrested owing to the ‘exclusive use’ narrative of the Turkish government. However, I find it unfortunate that the Court overlooked the fact that the Turkish judiciary had applied the material and mental elements of the offense retrospectively. In other words, at the time of the acts attributed to the applicant, namely the Bylock usage, the Gülen Movement was not proscribed as a terrorist organization and, on the contrary, enjoyed a wide and respectable presence in all sectors of Turkish society. Furthermore, it would have been, at the very least, an eye-opener for the Turkish government if the Court had scrutinized whether this secret communication app was used during and/or for the purpose of staging the 15 July coup attempt, which the government alleges, has been orchestrated by the Gülen Movement and due to which, by and large, the latter was declared as a terrorist organization. Yet another approach of the Court, which I also find unfortunate, is that it addressed the issue of using a secret communication app not primarily as a mere enjoyment of the freedom of expression and right to respect for private life but as potential conduct that might form the constituent elements of the offense of terrorism. On the contrary, such a rights-oriented approach was the one adopted in various Bylock-related opinions of the United Nations Working Group on Arbitrary Detention (UNWGAD).

The Court’s Findings under Article 6 of the Convention

The Court’s finding on the violation of the right to fair trial pertains to the applicant’s assertions concerning the integrity and reliability of the Bylock raw data as well as the legality of its collection and analysis by the Turkish intel agency, a.k.a. the MIT. As also acknowledged by the government, by the time a domestic court issued a seize order for the Bylock servers, the MIT had long collected the Bylock raw data and analyzed it not only for intelligence purposes but also to initiate criminal proceedings (§ 334). It remains unknown on what legal grounds the MIT collected the data and under compliance with which legal and digital forensic principles it examined those data and identified the users as potential terrorism suspects. For instance, a number of independent digital forensic experts (here, here, and here), which were repeatedly referred to by the applicant, uncover numerous traces of concrete manipulation of the data collected by the MIT as well as a biased analysis methodic such as to vindicate some pre-determined outcomes. The mere fact that the MIT has reduced the number of people who downloaded ByLock from over 1 million to 215,000, then to 102,000, and then to 91,000 raises serious concerns regarding the accuracy and reliability of the ByLock data.

Having been cautious in refraining from acting as an appellate court by analyzing the admissibility of the Bylock findings, the ECtHR scrutinizes the applicant's concerns summarized above under the principles of equality of arms and adversarial proceedings. In this vein, the Court examines whether the applicant was granted procedural safeguards that would enable him to raise those concerns in the criminal proceedings (§ 316, §317). The Court first determines whether the applicant’s concerns on the integrity, reliability, and legality of the Bylock findings lay at the core of the case and were essential for concluding it (§ 332, § 345). After establishing the essentiality and vitality of those concerns, the Court examines how the domestic courts reacted to them. The Court notes that the applicant’s persistent requests that the Bylock raw data be made available and accessible to him or be sent for an independent examination simply went unanswered. Nor the aforementioned inconsistencies and irregularities raised by the applicant were addressed by the domestic courts, as noted by the ECtHR. The Court concludes eventually that the applicant was deprived of sufficient safeguards to equip him with a genuine opportunity to challenge the evidence against him and conduct his defense in an effective manner and on an equal footing with the prosecution (§ 341). This conclusion led the Court to find the violation of the right to a fair trial enshrined in Article 6 of the Convention.    

Having observed that the individual internet traffic information and telecommunication records (a.k.a. CGNAT and HTS data) are in line with the data obtained by the MIT from the Bylock servers, the ECtHR indicated that it does not have sufficient elements to impugn the integrity and accuracy of the Bylock data (§ 323). It is unfortunate that, in this observation, the Court overlooked numerous traces of manipulation of the Bylock raw data documented in technical reports of independent digital forensic experts (here, here, and here), which the applicant relied upon throughout this case. These reports cast serious doubts on the integrity and accuracy of the Bylock data. Furthermore, the Court failed to appreciate the seriousness of the fact that the individual internet traffic information and telecommunication records had been obtained outside the statutory time limit. After the expiration of the retention period, those records were kept under the custody of the information and communication technologies authority and the MIT with no legal basis at all, as had been the case for the initial period of the Bylock raw data. In other words, those records are also fraught with illegality and lack of chain of custody and highly prone to manipulation. And yet the Court observed that the accuracy of the Bylock raw data could be substantiated with some records whose accuracy is itself under suspicion. Last but not least, the Court refrained from pronouncing a violation from the standpoint of the right to privacy enshrined in Article 8 of the Convention. Although a great volume of private communication data of the applicant was seized and processed unlawfully, unforeseeably, and irresponsibly, the Court considered his arguments to this effect peripheral and not having situated at the heart of his complaints, a reasoning which seems unsatisfactory (§ 371, §372).

Conclusion

Immediately after the publication of the judgment, the Turkish minister of justice displayed his resentment with the finding of violations, criticizing the Court for analyzing the evidentiary value of the Bylock findings and thereby acting as a “court of appeal” in contrary to its well-established precedence. This concern was also conveyed by the government in its submission in the form of a warning for the Court to refrain from acting “as a court of ‘fourth instance’ by questioning the conclusions reached by domestic courts or to substitute its own views for their findings” (§ 289). In the face of this remark, the Court adopts throughout the decision a cautious approach, whereby it keeps reminding that it is not competent to review the weight attached to evidence or to ascertain how digital evidence is to be collected or admitted in criminal proceedings (e.g., §243, §255, §302, §316, §412). On the other hand, the Court also reminds that it would remove such restrain when the domestic authorities reach conclusions or pronounce judgments in an arbitrary or manifestly unreasonable manner and to the extent that those conclusions and judgments infringe rights and freedoms protected by the Convention (§ 302, §304).

Overall, this landmark judgment of the Grand Chamber stands out, by and large, with its well-examination, meticulous scrutiny, and spot-on conclusions, and sets a powerful precedent for pending and prospective cases of similar nature. The judgment delivered a resounding message regarding the protection of fundamental human rights, as it uncovered severe violations of key provisions of the Convention. In parallel with the finding of the UNWGAD that the deprivation of liberty in Turkey is systematic, the Court describes the problems that had led to findings of violations as being systemic in nature. It takes attention to approximately 8,500 applications on the Court’s docket involving similar complaints under Articles 7 and/or 6 of the Convention and to tens of thousands of potential applications to come, as hinted at by around 100,000 ByLock users according to official figures from Turkey. Eventually, referring to Article 46 of the Convention, the Court calls on Turkey to take general measures as appropriate to address the systemic problems that led up to the violations stemming from the Turkish judiciary’s approach to Bylock evidence (for a deeper analysis on how the judgment should be adopted by the Turkish judiciary, see here). It remains to be seen whether Turkey will abide by the judgment, although President Erdogan's remarks on the judgment at the opening ceremony of the new legislative appears not reassuring. Against this backdrop, it is up to the victims to be proactive and vigilant and have the judgment included in their respective case dossiers or lodge applications for retrial on the basis of severe violations found in the judgment.   

Intersectional Rewrites Project

An interesting project has been launched online this year, entitled Intersectional Rewrites: European Court of Human Rights Judgments Reimagined. Leading eventually both to a book as well as to a blog series (see the call for blog contributions below), this is the summary of the project as worded by its creators:

'Intersectional Rewrites: European Court of Human Rights Judgments Reimagined imagines a jurisprudence that rises to the challenge of responding to these intersecting forms of oppression, discrimination, and other human rights harms. This volume will gather 15 recent judgments from the Court, rewritten by activists, practitioners, and academics based on the key learnings of intersectionality theory and praxis and help illustrate that people with intersecting identities experience discrimination not as an additive phenomenon somehow understandable through the simplistic lens of comparison, but in a complex form only comprehensible through a careful examination of their lived experience.

Blog Symposium

The Intersectional Rewrites project is hosting a blog symposium, dedicated to examining the role intersectional analysis plays and could play in the case law of the European Court of Human Rights. This blog symposium is designed to complement the Intersectional Rewrites book project by providing an open space for creative thinking on the issues in relation to a wider range of case law than can be covered in the book.  

Call for submissions

We invite submissions of blogs of no more than 1,500 words. Blogs should be submitted in English, by 31 October 2023, to blogsymposium@systemicjustice.ngo. A group of authors and editors of Intersectional Rewrites will select blogs for publication and offer editorial support. We expect blogs to appear on the website from January 2024.  

There is no restriction on authors, we invite: students, academics, practising lawyers, and anyone else interested in the subject to submit a blog. The only limitation on subject matter is that blogs should relate to the European Court of Human Rights and the critical paradigm of intersectionality. We expect bloggers will want to have a go at rewriting small parts of judgments or critique specific rulings, but we welcome other approaches. If you have doubts about your planned approach, feel free to get in touch.'