Sunday 26 February 2023

New Textbook: Fundamental Rights, The European and International Dimension

A new textbook entitled Fundamental Rights: The European and International Dimension has been published, edited by our Utrecht University colleague Janneke Gerards. The textbook discusses the different European and International legal instruments that regulate the protection of fundamental rights in Europe, including the ECHR. It provides an overview of the different requirements set by these instruments. Here is the abstract: 

'In Europe, fundamental rights have come to be regulated by an increasing number of legal instruments, such as the European Convention on Human Rights (ECHR), the EU Charter of Fundamental Rights, and international treaties. It is not always easy to understand what requirements are set in these different instruments and how they interrelate. This textbook therefore provides an integrated and systematic overview of the requirements imposed by international and European fundamental rights law. It discusses a range of both civil/political fundamental rights (eg freedom of expression) and social/economic rights (eg right to health), for each of which it is discussed how it is protected by the ECHR, by other Council of Europe instruments, by EU law, and by international treaty instruments. Each chapter is concluded with an integration section, which explains the relations between the different systems of fundamental rights protection and discuss differences, overlap and bottlenecks.

  • Discusses how fundamental rights are protected in European and international systems. Includes a section on 'comparison and integration' of the different systems in each chapter
  • Discusses a wide selection of fundamental rights (both civil/political and social/economic) to make it easier to explain and understand the differences and parallels between the different types of rights and how they are protected
  • Focusses on European fundamental rights law but also discusses international law and provides a concise overview of the different instruments'

Wednesday 22 February 2023

Interdisciplinary Symposium on Climate Science, Human Rights Courts and the ECtHR

On Thursday 2 March 2023, Ghent University and Strasbourg University are organizing a symposium entitled ''Translating Climate Science for the Human Rights Court Room: An Interdisciplinary Encounter Between Science and Law''. The event will discuss climate change litigation, including litigation before the European Court of Human Rights, from an interdisciplinary perspective. The speakers at the event will be, amongst others, Hellen Keller (former judge at the ECtHR), Ioannis Ktistakis (sitting judge at the ECtHR) and Natalia Kobylarz (Senior Lawyer at the Court). 

Here is a brief description of the symposium:

''In light of the increasing pressure on international human rights adjudicative bodies to adjudicate on matters related to climate change, this symposium brings together eminent contributors from various disciplines to comment on the interpretation of climate science within the judicial setting. Acknowledging that judges will be tasked to engage in this complex, interdisciplinary exercise, the symposium seeks to mirror this complexity by bringing together scientists, historians and legal experts discussing comparative approaches to climate litigation, potential pitfalls, practical challenges as well as options for successful climate litigation before human rights adjudicative bodies. Underpinning this is the endeavour to provide a base line of understanding for various aspects of climate science: ranging from attribution questions concerning distinct emitters to quantifying ambition targets for individual states. The aim of this symposium is thus of two-fold nature: 1) knowledge sharing and providing an instructive part for legislators to use as guide posts when confronted with complex climate science; and 2) opening up an interactive forum between the different disciplines to facilitate a multi-layered, rich understanding of each other’s work.''

The program can be found here.

Thursday 16 February 2023

New Book on Article 8 ECHR, Family Reunification and the UK's Supreme Court

Helena Wray (Associate Professor at the University of Exeter) has just published a new book entitled Article 8 ECHR, Family Reunification and the UK's Supreme Court: Family Matters? Here is a brief summary:

''How do courts reconcile protecting family life with immigration control in human rights cases? This book addresses that question through an analysis of 11 UK Supreme Court decisions on immigration and family life, mostly focusing on Article 8 ECHR, the right to respect for family life, and starting with Huang v SSHD in 2007. The analysis is set against a national context that includes the Human Rights Act 1998 and regular controversies over immigration.

The book explains how the European Court of Human Rights jurisprudence has developed in recent years, but, particularly in the absence of children, it often still awards little weight to claims by citizens and residents to be joined by family when immigration status is an issue. This reflects governments' resistance to encroachment on their control over borders. The Supreme Court decisions show that, despite powers conferred by the Human Rights Act, a more nuanced position in domestic law was difficult to articulate and sustain. The book explores the way in which these problems were reflected in the changing language, argumentation, and structure of judgments. These problems revealed judges to be strategic actors drawing on personal and institutional values and responding to the shifting political context.

A more generous reading of Article 8 would be legally coherent but needs wider societal support to be realisable. The book ends with a discussion of how, if such support were present, the jurisprudence could give more weight to the needs of families. It is vital reading for anyone interested in families and immigration, and in the problems and potential of human rights adjudication.''

Wednesday 15 February 2023

Hybrid Workshop on Russia and the Council of Europe

On 24 February 2023, Liverpool Law School is organizing a hybrid workshop entitled ''Russia and the Council of Europe: A Troubled Membership and Its Legacy''. Ed Bates, Kanstantsin Dzehtsiarou, Andrew Forde and Isabella Risini will be the speakers at the event. 

Here is a brief description of the event:

''On 24 February 2022, Russia commenced its military aggression against Ukraine. A year later we will discuss the consequences of this catastrophic event focusing on the Russian membership in the Council of Europe. Russia was a member of the Council of Europe (CoE), and a Contracting Party to the European Convention on Human Rights (ECHR) for 26 years. On 16 March 2022, it became the first country to be expelled from the CoE, a consequence of which was its exit from the ECHR, six months later. The ramifications for the CoE and ECHR are hard to overestimate. In this workshop we will overview the difficult relations between Russia and the CoE.''

Tuesday 14 February 2023

New ECHR Readings

Please find below the newest selection of academic publications related to the European Convention on Human Rights, its Court and case-law:

* Alessio Sardo, ‘Hate Speech: A Pragmatic Assessment of the European Court of Human Rights’ Jurisprudence’, European Convention on Human Rights Law Review (29 November 2022): 

‘This paper aims to offer a fresh start for addressing several conundrums relating to hate speech. The method of research combines a conceptual analysis with a possible model for evaluating the European Court of Human Rights’ (ECtHR) decisions on hate speech. First, drawing on a Gricean account of communication, the argument proposes a working definition of hate speech: hate speech is best understood as a public speech act, aimed at subordinating individuals, which causes harm to targeted groups. Second, the paper offers a taxonomy of the different forms of hate speech, based on their degree of explicitness and detachment from the speaker’s intentions. The most explicit forms of (harmful) hate speech – e.g., racial slurs, fighting words, or overtly sexist remarks – will be distinguished from implicit forms of (harmful) hate speech – e.g., innuendo, insinuation, and irony. Third, the author develops a categorical framework for hate speech that can be used as a standard for evaluating the jurisprudence of the ECtHR. The author also discusses three limitations of the model: a) the absence of a European consensus, b) puzzled speakers, and c) difficulty in determining harm.’

* Mathieu Leloup, ‘Not Just a Simple Civil Servant: the Right of Access to a Court of Judges in the Recent Case Law of the ECtHR’, European Convention on Human Rights Law Review, (2 December 2022):

‘This article discusses the right of access to a court in the most recent case law of the European Court of Human Rights, more particularly the application of the so-called Eskelinen-test in the context of cases concerning domestic Judges. The Court appears to have established a new approach to this test, which considerably raises the bar to exclude Judges from access to a court when disputes about their status or career are concerned. First, the article discusses this new approach, suggesting that the reason for it can be found in the current rule of law landscape in Europe and highlighting its potential for future rule of law related cases. Yet, it equally points out how the test gives the final say in disputes about the status or career of Judges to Judges themselves, which creates potential issues of internal judicial independence, and may skew sensitive systems of balance of powers.’

* Johan Vorland Wibye, ‘Beyond Acts and Omissions — Distinguishing Positive and Negative Duties at the European Court of Human Rights’, Human Rights Review , vol. 23, issue 4 (December 2022):

‘The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one fulfilment option. These delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties.’

Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak, Gerd Oberleitner (eds), European Yearbook on Human Rights 2022 (Intersentia 2023) has bee published. The section on the Council of Europe and the ECHR includes the following items:

- The Evolving Jurisprudence of the European Court of Human Rights on Domestic Abuse (p. 205);
- The International Debate on AI Regulation and Human Rights in the Prism of the Council of Europe’s CAHAI: Great Ambitions (p. 225);
- Human Rights and Social Media: The European Court of Human Rights in the Digital Era (p. 253);
- The Freedom of Expression of the Judiciary as a Special Case of State Personnel: A European Human Rights Perspective (p. 283);
- Exploring Narratives about ‘Cancel Culture’ in UK Educational/ Employment Settings under the ECHR (p. 309);
- Consistency, Coherence and the Turn Towards Procedural Review in the European Court of Human Rights (p. 345);
- The Execution of ECtHR Judgments Related to Inter-State Disputes (p. 379);
- Lessons from the Inter-American Human Rights System to Further Utilise the Potential of NHRIs in the European Convention System: From Contextualisation to Inspiration? (p. 409);
- The Turkish Post-Coup Emergency and European Responses: Shortcomings in the European System Revisited (p. 445);
- Militant Democracy in the ECtHR Case Law on Genocide Denial Bans (p. 483);
- From the Right to Science to the Right to Open Science: The European Approach to Scientific Research (p. 515);
- Religious Accommodation before the European Court of Human Rights: Moving Forward a New Approach Towards Religious Minorities? (p. 543).

* Jaka Kukavica, ‘Towards a General Typology of Consensus Analysis: From Entrenching Divergence to Constituting Convergence’, in: Jakob Wischhoff Gašperin, Marjan Kos, Jaka Kukavica, Maja Sahadžić & Julian Scholtes (eds.), Accommodating Diversity in Multilevel Constitutional Orders: Legal Mechanisms of Convergence and Divergence (forthcoming):

‘Consensus analysis is a method of interpretation and an argumentative practice employed by some of the highest courts in multilevel legal systems, ranging from national federations to systems with origins in international law. In its most basic and most prevalent form, consensus analysis is used by courts when they interpret a legal norm of a higher-level legal order based on how this norm had been interpreted and implemented in lower-level legal orders – the constituent states. Though there is abundant literature on the applications of consensus analysis within specific jurisdictions, few, if any at all, have attempted to transcend the dependence of their analyses on a specific systemic context and to examine consensus analysis as a practice in the abstract. This chapter aims to begin to fill this gap. It analyses consensus analysis as used by the United States Supreme Court, the Court of Justice of the European Union, and the European Court of Human Rights to inductively devise a general typology of consensus analysis as used across different courts and institutional contexts. Establishing this typology is instrumental to our understanding that consensus may serve either as a converging or diverging mechanism for resolving conflicts in multilevel legal orders. Which of the two functions it serves will depend on what type of consensus is used by a specific court in an individual case.’

* Marco Fisicaro, 'Judicial Independence (and Subsidiarity) through Interim Measures: The New ECtHR’s Strategy at the Height of the Polish Constitutional Crisis', Diritti Umani e Diritto Internazionale, vol. 16, no. 3 (2022), pp. 637-658.

Monday 13 February 2023

Earthquakes in Türkiye and the Right to Life: Whither Positive Obligations?

On 6 February 2023, Türkiye and Syria experienced two devastating earthquakes which affected the lives of more than 24 million people. The death toll has passed 30.000, and the UN fears that the figure could double. The number of injured and homeless people is far worse. According to Ross Stein, the head of catastrophe modelling company Temblor, “the number one factor [was] building quality”. Other seismologists and engineers argue that building standards and failure to enforce them have contributed to a high death toll. 
These claims trigger a set of questions from a human rights standpoint. In particular, while no doubt that loss of life and destruction of property is expected following a 7.8 magnitude earthquake, the question is whether the State had taken all the necessary measures to minimise the loss of life (Article 2 ECHR), protect the right to private and family life (Article 8 ECHR), and prevent the destruction of property (Article 1 of Protocol No. 1). 
The European Court of Human Rights has found in M. Özel and Others v. Turkey that, while States have no control over earthquakes, they are under an obligation to adopt “measures geared to reducing their effects in order to keep their catastrophic impact to a minimum. In that respect, therefore, the prevention obligation comes down to adopting measures to reinforce the State’s capacity to deal with the unexpected and violent nature of such natural phenomena as earthquakes” (para. 173). The Court has further explained that such measures include “appropriate spatial planning and controlled urban development” (para. 174). Even though the complaint was out of time, the Court found it relevant to note that “the local authorities which should have supervised and inspected [the respective] buildings had failed in their obligations to do so” (para. 175).
The Court’s approach in M. Özel and Others v. Turkey confirms States’ positive obligations to protect the right to life also in the context of natural disasters, including earthquakes. The ECtHR is mindful that protection of all lives is not always possible. After all, the duty to protect the right to life is one of means and not of result. However, the Court has clarified that  domestic “authorities must take appropriate care to ensure that any risk to life is minimised” and it must be examined whether they “were not negligent in their choice of action”. The Strasbourg Court has noted the requirement on states to “undertake any measures within their powers that could reasonably be expected to avoid, or at least mitigate risk”.
It appears that even the Turkish authorities have acknowledged that the death toll in this and previous earthquakes have been connected to poor construction. Following the 2011 earthquake in Türkiye, Erdogan blamed poor construction for the (then) high death toll, and argued that the negligence of municipalities, constructors and supervisors amount to murder. As in the aftermath of 2011 earthquake, the Turkish authorities have issued numerous arrest warrants and have already arrested a number of contractors whose buildings collapsed in the 2023 earthquakes. In short, there appear to exist prima facie scientific arguments and political acknowledgment by the Turkish authorities that the death toll and destruction of property in the past and recent earthquakes are also connected to bad construction and human negligence. 
It must be noted that criminal prosecution of contractors whose buildings collapsed does not fully satisfy States’ obligations under the right to life. This is only one post factum obligation. Türkiye’s obligations under the ECHR remain also with regards to the obligation to prevent the loss of life, which includes two positive obligations. First, to issue adequate building permits and enforce the requisite construction regulations to prevent loss of life during earthquakes, and, second, to undertake adequate operational measures to search and save lives after the earthquake.
While many victims remain missing under the rubble, and those found need food, medical care and shelter, the focus must remain on search and rescue operations, aid and solidarity with the victims. Yet, the human factor involved in this tragedy merits an in-depth discussion also about the accountability for failure to take the necessary measures to protect the right to life as guaranteed by the European Convention on Human Rights.

Thursday 9 February 2023

The ECtHR's Future Processing of Applications against Russia

In a number of recent decisions (most notably in Fedotova and Others v. Russia, Ukraine and the Netherlands v. Russia, Kutayev v. Russia and Svetova and Others v. Russia) the European Court of Human Rights has explained how it will deal with both pending and future applications against the Russian Federation. Russia ceased to be a party to the Convention on 16 September 2022, and the Court cannot exercise jurisdiction over any human rights violations committed after that date. As of 1 February 2023, there are 16730 pending applications (including both individual and inter-State applications) against Russia, and the Court has now provided clarity as to how it will deal with these pending and future applications. In essence, the Court has chosen for a solution that Professor Kanstantsin Dzehtsiarou has described as the 'business as usual' model in an earlier guest post: the Court will continue to deal with all pending applications against Russia as it was doing before Russia's expulsion from the Council of Europe and its withdrawal from the Convention. The Court still has the competence to deal with all applications against Russia that concern human rights violations that occurred before Russia ceased to be a party to the Convention, as was confirmed by the Court for the first time in its Fedotova and Others v. Russia judgment of 17 January 2023. Furthermore, since the Russian judge Mikhail Lobov is no longer a member of the Court and the list of ad hoc Russian judges is not valid any longer, the Court confirmed in its judgments in Kutayev v. Russia, Svetova and Others v. Russia and Ukraine and the Netherlands v. Russia that it will appoint an ad hoc judge from among the sitting judges to examine the applications against Russia. Lastly, the Court clarified in Svetova and Others that it can continue to deal with the applications against Russia notwithstanding its non-participation in the proceedings. 

Monday 6 February 2023

New Thematic Factsheet on Climate Change

The European Court of Human Rights has published a new factsheet on climate change. The Court has yet to rule on State obligations to prevent climate change. The factsheet contains the three cases on environmental matters currently pending before the Grand Chamber of the Court (Verein Klimaseniorinnen Schweiz and Others v. Switzerland, Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Other). In the next month, on 29 March 2023, the oral hearing in the Verein Klimaseniorinnen Schweiz and Others and Carême cases will be held, and the oral hearing in the Duarte Agostinho and Others case will follow at a later stage. 

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

Thursday 2 February 2023

Lecture on Ireland and the ECHR by Court President Síofra O’Leary

Yesterday, the President of the ECtHR Síofra O’Leary gave an online lecture on Ireland, the Council of Europe and the ECHR. The lecture was organized by the Irish Department of Foreign Affairs on St. Brigid's day. President O'Leary spoke about Ireland's engagement with the ECHR and the effects of the Court's rulings on the country. The lecture was followed by a panel discussion by Senator Fiona O’Loughlin and Professor Aoife Nolan. 

The recording of the lecture can be watched here