Friday 31 March 2023

Wishes for Reykjavik

What Can the Fourth Council of Europe Summit Have in Store for the Court? 

by Lize R. Glas, Radboud University 

On 16 and 17 May 2023, a summit of heads of state and government of the Council of Europe (CoE) will take place in Reykjavik, Iceland. This is only the fourth such summit in the almost 74 years of existence of the organisation. With the war in Ukraine, which led to the expulsion of Russia from the CoE, the organisation is ‘at crossroads in its history’ and a summit was, therefore, called for. Other challenges for the CoE include democratic backsliding and erosion of the rule of law. The earlier three summits were also convened against the backdrop of great upheaval: the fall of the Berlin wall (1993), significant enlargement of the organisation (1997) and a series of terrorist attacks (2005) (see also here). The outcome of a summit – a declaration and action plan – can have major consequences for the Court. 

In this blog, I will first summarise the consequences of the previous summits for the Court. The main part of the blog explains what the upcoming summit can have in store for the Court, based on what five existing ‘wish lists’ for the summit want for the Court. 

The first list led to convening the summit and is the Report of the High-Level Reflection Group of the CoE. Secondly, the Parliamentary Assembly (PACE) adopted a wish list in the form of a recommendation(see also the underlying report). The third list is the The Hague Civil Society Declaration on CoE Reform38 civil society organisations (and counting) endorsed this Declaration, which was the result of a civil society summit organised by the Campaign to Uphold Rights in Europe (CURE) and the CoE’s Conference of International NGOs (CINGO) at the end of February. The latter also made a submission to the High-Level Reflection Group, which I also take into consideration, as I will do with another such  submission, which was prepared by the European Network of National Human Rights Institutions (ENNHRI). The last ‘wish list’ that I consulted is a letter written by Amnesty International in which it provides recommendations for the future of the CoE, in response to a call for consultations launched by the Icelandic Presidency of the Committee of Ministers (CoM). The Court itself also gave input to the High-Level Reflection Group, but this document is not available publicly. 

The previous summits and the Court 

The 1993 Vienna Declaration qualified an ‘undertaking to sign’ the Convention ‘within a short period’ as ‘fundamental’ for new member states of the CoE, thus increasing the importance of the ECHR and its Court. This instruction is now ‘a collective opinio juris, and its content has been confirmed by the practice followed in examining applications for membership’. Equally important, the states resolved to establish a single Court, thus giving green light to abolishing the part-time Court and the European Commission on Human Rights – a reform that changed the Convention system fundamentally. 

The 1997 Final Declaration, which was adopted in Strasbourg, affirmed the states’ determination to ensure full implementation of the CoE treaties, welcomed the ratification of Protocol 11 ECHR by all states and instructed the CoM to take the necessary steps to set up the single Court on 1 November 1998, as indeed happened.

In the 2005 Warsaw Declaration, the states expressed their strong commitment to implement the measures adopted at the CoM’s 114th Session. In that session, the ministers had adopted three recommendations to the members states (on improvement of domestic remedieson the verification of the compatibility laws and administrative practice with the Convention standards; and on the Convention in university education and professional training). The Declaration also led to the establishment of the Group of Wise Persons, tasked with drawing up a ‘comprehensive strategy to secure the effectiveness of the system in the longer term’. Quite a number of their ideas have not been implemented, but one idea planted the seed for a new protocol: Protocol 16, which permits the highest courts in the signatory states to request an advisory opinion from the Court. 

In the Warsaw Action Plan, the states pledged to ‘ensure the long-term effectiveness’ of the Convention ‘by all appropriate means’. As a consequence of this pledge, ‘more than 80% of the increase in the [CoE’s] budgetary posts benefited the Court’ in 2000-2020 according to the High-Level Reflection Group. This is only telling of the limited increase in budgetary posts and did not mean that the Court’s budgetary situation was rosy, since its regular budget allocation decreased from 629 posts in 2011 to 585 in 2021.

More budget for the Court (and the CoE at large) 

The most urgent practical wish is more budget for the CoE – without this ‘all pledges to re-vitalise the CoE are meaningless’, according to CURE. The CoE’s real budget decreased in the period 2010-2020 as a consequence of the CoM’s zero-nominal-growth policy. It now maintains a policy of zero-real-growthThese policies, coupled with Russia’s ‘refusal to pay its outstanding dues have put the Council of Europe in a difficult budgetary situation’. Although the states have made voluntary contributions in response, this is only a short-term solution. 

The half a euro per citizen living in the CoE that the states contribute to the regular budget is, according to the High-Level Reflection Group ‘unquestionably insufficient’, especially when compared to, for example, the budget of the City of Strasbourg, which amounts to 2000 euros per inhabitant. The PACE proposes to increase the budget by reviewing the scales of the contributions in order to raise the minimum contribution and by exploring whether the EU can contribute as part of its strategic partnership with the CoE. CURE suggests a budget of one euro per citizen as a ‘starting point for discussion’. 

Since the Court’s budget (76,816,700 euros for 2023) is not separate from that of the CoE, this wish for more budget is also relevant to the Court. CURE also specifically asks for extra funding for both the Court and the Department for the Execution of Judgments of the Court (Execution Department). The High-Level Reflection Group, CINGO and ENNHRI also flag the need to increase the Department’s budget (see also here). Both the previous President of the Court, Robert Spano, and the current President, Síofra O’Leary, have asked for further resources for the Court. As President O’Leary put it: the summit should ‘translate the discourse of values into material support’ (see also here).

Accession of the EU to the ECHR 
Both the High-Level Reflection Group and the PACE hope that Reykjavik will give the accession negotiations a boost so accession will be finalized sooner rather than later. There is a possibility that the states can give their approval to the revised draft accession instruments almost ten years after the Court of Justice of the EU declared the previous accession agreement invalid with the TEU. The CDDH Ad Hoc Negotiation Group, agreed to provisionally adopt these instruments, ‘with no delegation indicating any reservation’. Moreover, the CDDH will hold an extraordinary online meeting almost six weeks in advance of the summit to adopt the ad hoc group’s report. To my surprise, CINGO deems accession ‘technically unfeasible’ and argues that the ‘values and power of the CoE must be developed in its own right, in the service and with the full participation of all its members both within and outside’ the EU. Amnesty International does support accession. 
Additional Protocol to the ECHR on the environment
The words ‘environment’ (apart from ‘democratic environment’) and ‘climate’ are strikingly absent from the High-Level Reflection Group report. The word ‘climate’ only features in the chairperson’s biography, which makes the absence even more striking, since the chair – Mary Robinson – is Adjunct Professor for Climate Justice. Still, it can be expected that the environment will be on the agenda of Reykjavik because the environment is one of the four themes of the Icelandic CoE presidency. Moreover, Iceland proposed to look ‘at the right to a clean, healthy and sustainable environment’ during its presidency. The PACE proposes the environment as a separate agenda item and hopes that the summit supports the drafting of a binding instrument on the right to a healthy environment in the form of an additional protocol to the Convention, a hope that CURE and Amnesty International share. 

In 2021, the PACE made a similar recommendation, to which the CoM replied that it had instructed the CDDH to carry out a feasibility study. This is a more positive reply than the CoM’s previous reply to a similar PACE recommendation, when the CoM answered that an additional protocol was not ‘advisable’. Based on the more positive reply and with Iceland’s priorities and the latest alarming IPCC report in mind, perhaps sufficient momentum has been gained to give political approval to what will be Protocol 17 ECHR (see also here). The summit may come too early, however, since the CDDH Drafting Group on Human Rights and the Environment will discuss only the first two chapters of its feasibility study on 4-5 May 2023.

Execution of the Court’s judgments 

The last wish on the list, which is shared by all institutions, is improved execution of the Court’s judgments. The gist of what the High-Level Reflection Group suggests is a more political, comprehensive and co-operative approach to the execution process, in particular when execution is flawed because of a lack of political will. This approach requires ‘enhanced engagement’ with the respondent state and with different domestic actors, not only by the CoM at its human rights meetings, but also by the PACE and even the EU. The latter can, for example, as Amnesty International proposes ‘remind its member states of their obligation to implement ECtHR judgments, including in the annual Rule of Law Report and dialogues’ and ‘call for the implementation of judgments in the framework of its relations with non-EU member states, in particular those in the path to accession’.  
The Reflection Group proposes that the CoE should not just identify Convention violations, but ‘also contribute to finding sustainable and acceptable solutions’, which ‘may require a change in paradigm’, although I wonder whether the Execution Department does not already contribute to this. The PACE echoes these ideas and advocates for ‘strengthening relevant co-operation activities and introducing a procedure for enhanced political dialogue in cases of non-compliance’. This emphasis on co-operation should not lead to losing sight of the fact that, as Amnesty International points out, certain states systemically refuse to comply with the Court’s judgments, Turkey’s outright refusal to comply with the infringement judgment in the case of Osman Kavala being a case in point. The NGO proposes that the summit condemns this refusal ‘in the strongest possible terms’ and recommends the Secretary General, the CoM’s Presidency and the PACE President to visit Osman Kavala in prison.
Probably with cases like those of Osman Kavala in mind, the High-Level Reflection Group recommends the summit to consider whether ‘graduated sanctions’ can be imposed when a state persistently refuses to abide by a judgment. Comparably, CURE proposes to develop new types of sanctions. In 2000, the PACE recommended amending the Convention to introduce fines. The CDDH’s opinion on this proposal, which was appended to the CoM’s negative response to the PACE, mentioned a number of questions that the proposal raised: 
‘would such a system be efficient, would it be so outside certain exceptional situations (such as when a government is persistently refusing to fulfil its obligation to abide by a judgment)? Would, furthermore such a system be at all appropriate when the execution of the judgment requires the adoption of general measures, notably legislative ones, which may require lengthy procedures at the national level?’ 
The Venice Commission also wondered whether penalties would be of added value and offered to carry out a study to clarify this. Perhaps the questions of the CDDH and the offer of the Venice Commission will serve to inspire the participants at the summit to order such a study. 
Although the CoM can currently not impose sanctions (other than taking away a state’s rights of representation or its membership under Article 8 of the CoE statute), it can start infringement proceedings against a state that refuses to abide by a Strasbourg judgment under Article 46 (4-5) ECHR.  CURE proposes that the CoM applies this procedure ‘with greater speed and transparency and in a wider range of cases’. So far, the procedure has only been applied in the case of Osman Kavala as was noted above and in the factually comparable case of Ilgar Mammadov v Azerbaijan. Amnesty International focuses on the execution of infringement judgments, emphasising that an infringement judgment ‘should automatically trigger a collective response’ of the CoE’s statutory bodies and the states. Additionally, Amnesty International submits that the execution of these judgments should be included in every ministerial meeting at the end of a presidency (including in Reykjavik where this topic should be a separate agenda item) and that a conference should be organised when a state refuses to execute an infringement judgment. 
The more specific proposals come from CURE, suggesting, among other things, that the states encourage the Court to be more precise in its judgments about execution measures. The Execution Department would also welcome this. The High-Level Reflection Group notes about this idea that the Court’s guidance ‘gives an indication as to the choice of implementation measures; the choice itself remains a prerogative of the state party’. 

I am not sure that the Court would agree with this statement. As one of its previous Judges explained: the Court has ‘repeatedly’ prescribed (not merely suggested) execution measures and this practice has ‘a solid legal basis’, both in the Convention and in CoM documents. When the Court prescribes an execution measure in the operative provisions of its judgment, choosing the measure is outside the prerogative powers of a state (although the Court does not usually describe a measure in detail, so the respondent state can fill in the details). Even in the absence of a prescription of the Court, choosing execution measures is, I would argue, never the exclusive prerogative of the state, because the CoM is responsible for supervising the execution process under Article 46(2) ECHR.
So what can the fourth Council of Europe Summit have in store for the Court? 

The overview of what previous summits had in store for the Court demonstrates that a summit can have major consequences for the Court and can serve to express approval of already adopted reforms and promulgated ideas. However, the declarations did not include any detailed reform plans, which are left for other occasions, such as high-level conferences on the Court’s future, regular CoM sessions and working groups. We should, therefore, probably not expect any detailed proposals regarding the Court from Reykjavik, despite some of the current wishes being fairly specific. 

Based on the different wish lists, it is likely that these points will be subjects of discussion in Reykjavik: not only renewed support for the CoE’s founding principles and the Court’s authority, but also additional budget to turn support into action, approval of the EU accession instruments, an addition protocol to the ECHR on the right to a healthy environment and new approaches to the execution of the Court’s judgments. Only time will tell whether these points will make it to the declaration. 

Lize R. Glas is associate professor of international and European Law at Radboud University and member of the CURE Advisory Council.

Tuesday 28 March 2023

New Edition of 'Law of the European Convention on Human Rights'

David Harris (Emeritus Professor at the University of Nottingham), Michael O'Boyle (Former Deputy Registrar at the European Court of Human Rights), Ed Bates (Associate Professor at the University of Leicester) and Carla M. Buckley (International Human Rights Lawyer) have just published the fifth edition of their textbook entitled Law of the European Convention on Human Rights. The textbook provides a comprehensive guide to the Convention, article by article. Here is a brief description:

''This seminal text offers a comprehensive account of the case law of the ECHR and its underlying principles. It provides a guide to decisions under the Convention and its protocols, article by article, as well as explaining the history and likely development of the law.

  • Critically examines the substantive content of each of the basic rights of the Convention and successive Protocols, as well as explaining the history and likely development of the law
  • Sets the Convention in its international context by examining its relationship with national and European Union law
  • Fully explores the extent of the Convention's influence on the legal development of the contracting states, and reveals exactly how such a powerful authority has been achieved and maintained''

Thursday 23 March 2023

The Hague Civil Society Declaration on Council of Europe Reform

Earlier this month, on 28 February and 1 March, the first ever Council of Europe Civil Society Summit took place in The Hague, the very city in which 75 years earlier one of the foundational moments of the European movement happened, eventually leading to the creation of the Council of Europe (as well as to the precursors of the European Union). This year's summit gathered civil society representatives from across Europe to come together around a unified message directed at the Council of Europe's member states. The latter will gather in Reykjavik on 16 and 17 May of this year, for the fourth ever summit of heads of state and government. The previous one took place in Warsaw as long ago as 2005, when Europe and the world looked quite different in terms of rule of law, democracy and human rights. The Council of Europe is, without exaggeration, at a crossroads and many would say in an identity and effectiveness crisis, after the ousting of its largest member last year and with the protection of its three core aims under heavy pressure.

In order to reflect the voice of civil society, from human rights defenders to NHRIs, and from human rights NGOs to youth movements, a special text was  developed in The Hague (this author had the privilege to be one of the rapporteurs in the meetings). The text of the Hague Civil Society Declaration on Council of Europe Reform is now available online. This version includes extensive explanatory notes that provide background to the proposals made. It includes a whole section dedicated to structuraal improvements of the implementation of the judgments of the European Court of Human Rights.

The Declaration is now open for endorsements by civil society organisations and individual experts, including academics, around Europe (meaning that they support the overall direction of the proposals and the sense of urgency behind them), both those who have participated in the Civil Society Summit and those who have not. If you are interested in endorsing and supporting the Declaration, you can write to . A list of endorsements will be posted (and regularly updated) here

Wednesday 22 March 2023

Webinar on Climate Change and the ECHR

On 23 March, Columbia Law School's Sabin Center for Climate Change Law is organizing a webinar entitled 'The Climate Docket at the European Court of Human Rights'. The webinar will discuss the cases on climate change currently pending before the European Court of Human Rights, and the main legal issues raised by these cases. 

Here is a description of the webinar:

''In yet another manifestation of the “turn to rights” in climate litigation, a dozen cases seeking to spell out Member States’ obligations with regard to climate change mitigation and adaptation under the European Convention on Human Rights have been brought before the European Court of Human Rights in recent years. These cases raise complex novel issues of human rights law. They are likely to make an indelible mark on the international legal landscape, notwithstanding their impact on ongoing domestic climate litigation efforts and, overall, on climate policies across Europe and beyond. To shed light on these developments, the Sabin Center’s Peer Review Network on Global Climate Litigation is hosting a half-day Conference on March 23, 2023. The Conference will include a general overview of the “Climate Docket” of the European Court of Human Rights as well as a detailed discussion of the three cases to be heard by the Court at the end of March 2023 (Duarte Agostinho and Others v. Portugal and 32 Other StatesCarême v. France, and KlimaSeniorinnen v Switzerland). Furthermore, we will debate the variety of legal issues they involve, including the complainants’ victim status under the Convention, the attribution of responsibility, the legal standing of NGOs, the justiciability of “climate harm,” and extraterritoriality. We will hear from a wide range of perspectives thanks to the participation of leading academics, practitioners, activists, and members of the international judiciary.''

Tuesday 14 March 2023

Summer School on Council of Europe

The School of Law and Social Justice of the University of Liverpool will be organising a dedicated summer school on the Law of the Council of Europe. It will take place between 2 and 14 July and is geared towards the postgraduate level, for students, scholars and practitioners. The lecturers include not only academics, but also current and former judges of the European Court of Human Rights and current and former parliamentarians from PACE as well as officials from the Council of Europe. This is the abstract of the contents:

'Europe is at the crossroads. Its future, its stability, and prosperity depend on how effectively it will respond to the crucial – old and new – challenges that it is facing. This summer school will bring together key decision-makers from the Council of Europe and leading scholars to discuss the ways in which the Council of Europe system can stand up to these challenges. These include rising illiberal democracies, the Russian aggression against Ukraine, and the consequent expulsion of the Russian Federation from the Council of Europe, but also climate change, public health emergencies, such as the one caused by COVID-19, and economic crises. The outcomes of the Summits of Heads of State and Government of the Council of Europe in Reykjavik, Iceland will also be discussed.'

The deadline for applications is 14 April 2023. You can apply here.

Monday 13 March 2023

New Issue ECHR Law Review

The first issue of the year of the ECHR Law Review has just been published (vol. 4, issue 1). The issue contains one editorial note, one guest editorial, two research articles and a book review. The contributions discuss such topics as the role of the president of the European Court of Human Rights, the right of access to a court, hate speech and assisted suicide. This is the table of contents:

*Kanstantsin Dzehtsiarou, 'Between a Rock and a Hard Place: The Role of the President of the European Court of Human Rights'

*Robert Spano, 'Primus Inter Pares, but More Pares than Primus! – Recollections of a Former President of the European Court of Human Rights'

*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'

*Alessio Sardo, 'Hate Speech: A Pragmatic Assessment of the European Court of Human Rights’ Jurisprudence'

*Daria Sartori, 'Stevie Martin, Assisted Suicide and the European Convention on Human Rights'

Thursday 9 March 2023

Webinar on the Future of the European Court of Human Rights

On 13 March, SWPS University, Riga Graduate School of Law and the University of Cologne are organizing a webinar on the future of the European Court of Human Rights. The webinar is part of a series of webinars entitled ''Road to Reykjavik. Chances and Challenges to the Council of Europe''. As the Council of Europe is preparing for the 4th Council of Europe Summit of Heads of State and Government in Reykjavik in May this year, these webinar series will be discussing some pressing issues facing the Council of Europe. 

Here is a description of the opening webinar:

''The European Court of Human Rights, located in Strasbourg, France, is an international judicial body established under the European Convention on Human Rights. Its mandate is to protect and enforce the civil and political rights of individuals in Europe, and it is widely considered one of the most significant human rights courts in the world. However, the Court is currently facing a crisis due to a range of factors, including the war in Ukraine, Russia's expulsion from the Council of Europe in March 2022, and the disregard of the Court's judgments by member states that are embracing democracy based on majority dictate and authoritarianism. These circumstances have raised questions about the Court's future.

The first webinar of the "Road to Reykjavik" series will address these issues, starting with a keynote speech by Professor Angelika Nußberger, a former European Court of Human Rights judge. After her lecture, our discussants, Anastasija Kaplane, LL.M, representing the Riga Graduate School of Law and Filip Cyuńczyk, Ph.D. / Assistant Professor from SWPS University's Faculty of Law in Warsaw will provide critical commentaries. The meeting will be moderated by Professor Adam Bodnar, a renowned expert on human rights and Dean of the Faculty of Law in Warsaw.''

Friday 3 March 2023

New Thematic Factsheet on the Right to Free Elections

Today, the Council of Europe's Department for the Execution of Judgments of the European Court of Human Rights has issued a new thematic factsheet on the right to free elections. Here is a brief description:

''The European Court has underlined that democracy constitutes a fundamental element of the “European public order”. The right to free elections guaranteed under Article 3 of Protocol No. 1 to the European Convention on Human Rights is crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law and is accordingly of prime importance to the Convention system. The Convention does not lay down an obligation of abstention or non-interference, as with most civil and political rights, but one of adoption by the state, as the ultimate guarantor of pluralism, of positive measures to guarantee democratic legislative elections. The Court has established that the right to free elections also implies individual rights, including the right to vote and to stand for election. 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 adoption of legislative measures to ensure voting rights; restrictions on the right to vote; prisoners’ voting rights; electoral registration of candidate members of parliament (MPs) and of political parties; and regulation of electoral disputes including effective remedies.''