Workshop on Climate Change, Migration, Authoritarianism and the ECHR

On 16-17 November 2023, Başak Çalı, Esra Demir-Gürsel and Jens T. Theilen are organizing a workshop entitled 'Frames of European Human Rights - How are climate change, migration, and authoritarianism framed within the Council of Europe?'. The workshop is hosted by the Hertie School Centre for Fundamental Rights. The workshop will reflect critically on the frames and framers of climate change, migration, and authoritarianism in European human rights.

Here is a description of the workshop:

'Human rights set normative standards for states to adhere to – but they also contribute to shaping debates on politically, economically, and socially controversial topics at a deeper level, influencing our understanding of underlying realities, diagnosing problems, and leaving some aspects aside as irrelevant or less important. The aim of this workshop is to explore these constructions of realities and normativities within human rights law, focussing on the frames and framers of climate change, migration and authoritarianism in European human rights.

We invite contributions to critically analyse the emergence or shifts over time of the frames with regard to climate change, migration, and authoritarianism. What are the assumptions and terminology underpinning discussions of authoritarianism in Europe? What understandings of nature and its relation to the economy and human beings accompany discussions of climate change in the Council of Europe context? Along which lines are migrants classified within European human rights law, what kind of language is used to do so, and what gets invisibilised through these classifications? To explore the politics of different actors within the Council of Europe, we also seek to map the multiplicity of framers and how they interact with one another. To which actors can we trace certain frames used to address these topics? How do the vocabularies of various institutional actors within the Council of Europe and those of civil society and of scholarship overlap or conflict, and with what consequences?'

The deadline for abstract submissions is 23 June 2023. The full Call for Papers and more information can be found here. 

New ECHR Readings

Please find below our selection of recent publications, both articles and book chapters, related to the European Convention on Human Rights and its Court:

* Ivana Jelić, ‘Feminist Justice and the European Court of Human Rights’ in Ivana Krstić, Marco Evola, Maria Isabel Ribes Moreno (eds.), Legal Issues of International Law from a Gender Perspective (Springer International Publishing 2023), pp. 35-53:

 

‘Gender equality is clearly one of the pillar principles of the European Convention on Human Rights. Protection of women’s rights can be treated through an individual right, dealing with its substantial and procedural limb (ex. sex discrimination cases), or as an (aggravated) aspect or an attribute of a violation of a right enshrined by the Convention (ex. gender equality in connection with rights to freedom of expression or religion). Despite its principled position and having in mind the present state of jurisprudence of the Strasbourg Court (ECtHR), it could be concluded that feminist justice is still underdeveloped in comparison with the growing need for the protection of women’s rights, insisting on personal integrity.

 

Observing from a broader perspective, the ECtHR’s case law regarding feminist justice can be categorized into three clusters: (1) cases relating to achieving formal equality between men and women and prohibiting direct gender discrimination, focusing on the idea of achieving “sameness with men” (jurisprudence under Article 14); (2) cases relating to issues that may, in theory, affect both men and women, but in reality, disproportionately affect women and require special (additional) protection, such as domestic violence and trafficking; and (3) cases relating to issues that are specific to women’s rights, such as violence against women and reproductive rights.

 

The Court has gradually widened its approach concerning the protection of women’s rights, giving rise to a ‘living instrument doctrine’ by interpreting the Convention “in the light of present-day conditions”. This approach of evaluative interpretation of the Convention is necessary in order to address actual challenges of violation of human rights of women and girls, which were not envisaged in the text of the Convention 70 years ago.

 

The author tends to make an analysis on how contemporary international law deals with feminist justice, with a special emphasis on the most important ECtHR cases. The contribution should give an analytical overview through the prism of direct and indirect gender discrimination, having in mind the mentioned three clusters, with an emphasis on the recent case-law.’

 

* Janneke Gerards, Elif Erken and Claire Loven, 'The Expanding Methodological Toolbox of the ECHR Scholar', Law and Method (February 2023):

 

‘Scholars who set out to study the European Convention on Human Rights (ECHR or Convention) system will find an abundance in research methods to choose from. In the early years of the European Court of Human Rights (ECtHR or Court), the methodological toolbox of the ECHR scholar largely consisted of qualitative and classical-doctrinal methods to study the Court’s case law, as well as historical, philosophical and theoretical studies to contextualize the ECHR system. Today, these ‘traditional’ methods not only have evolved to reflect the enormous increase of, and scholarly interest in, the Court’s case law but have also been complemented by empirical qualitative and quantitative, statistical and machine learning research methods. This contribution traces these major developments in the methods applied to studying the Court. By providing a comprehensive discussion of the different approaches, including their application, value and potential weaknesses, this contribution helps scholars understand, use and learn from the rich methodological toolbox of the ECHR scholar.’

 

* Helga Molbæk-Steensig, ‘Subsidiarity Does Not Win Cases: A Mixed Methods Study of the Relationship between Margin of Appreciation Language and Deference at the European Court of Human Rights’, Leiden Journal of International Law, Vol. 36, Issue  1 (2023), pp. 83-107:

 

‘In August 2021, Protocol 15 inserted the doctrine of the margin of appreciation into the preamble of the European Convention of Human Rights, presumably cementing what President Spano has referred to as the ‘Age of Subsidiarity’, in which the European Court of Human Rights applies the margin of appreciation more often and increases deference to state parties. This insertion was done on the behest of the High Contracting Parties as part of the Interlaken reform process, and there is already a strong narrative in certain member states and parts of the scholarly literature that this focus has prompted the Court to increase the usage of the margin of appreciation and therefore the deference to states, judging more frequently in their favour. This article hypothesizes, however, that the increased usage of the margin of appreciation language which has been taken as proof for this narrative, might not, in fact, indicate higher levels of deference. Rather, the language of the margin of appreciation could be the result of usage by other actors or a marker of complexity for so-called ‘hard cases’. To investigate this relationship, the article applies a mixed legal-doctrinal and quantitative methodology to analyse who in the case law invokes the doctrine, what their purpose is for doing so, and what adjudicative consequences follow. It finds that usage of the margin-language topped well before the Interlaken process began, that governments are not the most frequent invokers and that, statistically speaking, states are no more likely to win margin-cases than other cases.’

* Andreas-Nikolaos Koukoulis, ‘The exercise of parental care of children born out of wedlock and the ECtHR: Reflections on Paparrigopoulos v. Greece’, Maastricht Journal of European and Comparative Law, Vol. 29, Issue 6 ( 2023):

 

‘This article analyses the recent judgment of the European Court of Human Rights in Paparrigopoulos v. Greece and examines its implications for cross-border surrogacy in Europe. This judgment is significant because it sets new standards in terms of the concept of discrimination between parents under Article 14 of the European Convention on Human Rights read in conjunction with Article 8 (right to respect for private and family life). The Court held that there was no reasonable relationship of proportionality between the preclusion of the applicant's exercise of parental responsibility and the aim pursued, which had been to protect the best interests of children born out of wedlock. Finally, this case note critiques the Court's findings and examines its likely impact on the parental care of the child, who was born and remains unmarried by his parents.’

* Daniela Alaattinoğlu, ‘Intersex interventions as human rights violations: The European Court of Human Rights sets out guiding principles in M v France’, Modern Law Review (14 February 2023):

 

‘In 2022, the European Court of Human Rights, for the first time, signalled that it regards non-consensual interventions on intersex individuals which are not motivated by medical necessity as human rights violations. This case note argues that the admissibility decision in question, M v France, albeit ruled inadmissible on procedural grounds, constitutes an important step towards binding supranational human rights standards, particularly regarding torture and ill-treatment. While M v France could inspire intersex people to further their claims as strategic litigation, the note reflects on the central questions invoked by the Court's decision and some of the legal hurdles that intersex people may face when approaching courts with claims for recognition and redress.’

New Book on Fairness in Criminal Appeal and the ECHR

Helena Morão and Ricardo Tavares da Silva, both of the University of Lisbon School of Law, have co-edited a book recently published by Springer, entitled Fairness in Criminal Appeal. A Critical and Interdisciplinary Analysis of the ECtHR Case-Law. This is the abstract:

'This book addresses the European Court of Human Rights’ fairness standards in criminal appeal, filling a gap in this less researched area of studies. Based on a fair trial immediacy requirement, the Court has found several violations of Article 6 of the European Convention on Human Rights at the appellate level by at least eighteen States of the Council of Europe in a vast array of cases, particularly in contexts of first instance acquittals overturning and of sentences increasing on appeal.

On the one hand, the book critically engages this case-law with the law revisions it has recently inspired in European countries, as well as with the critiques and difficulties that it continues to raise. On the other hand, it interweaves insight from criminal procedure theory with new discoveries in the field of cognitive sciences (neuroscience of memory, philosophy of knowledge, AI), shedding an interdisciplinary light on the (in)adequacy and limits of the Strasbourg Court’s jurisprudence.'

New Thematic Factsheet on Excessive Formalism by Courts

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 excessive formalism by courts. Here is a brief description:

''The European Court has underlined that the right of access to a court is an inherent aspect of the safeguards enshrined in the European Convention on Human Rights, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention.  Possible limitations to the above right must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right be impaired. Thus, the European Court has noted that, when applying procedural rules, the courts must avoid excessive formalism that would impair the fairness of the proceedings.

The new Thematic Factsheet issued today by the Execution Department provides examples of general and individual measures reported by States in the context of the execution of the European Court’s judgments focusing on the following specific issues: excessively formalistic rules of procedure; excessively formalistic interpretation of procedural requirements; assessment by courts of statutes of limitation; payment of court fees; clerical errors; and excessively formalistic decisions concerning detention.''

2022 Report on Execution of ECtHR judgments

Last week, the latest Annual Report 'Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights' (covering the year 2022) of the Council of Europe's Committee of Ministers was published. The report outlines some important achievements: the Committee's closure of 880 cases (including 200 leading cases), and there was a new record number of communications from national human rights institutions and civil society organisations. Nonetheless, as the report shows, the Committee is also facing a number of challenges. The total number of judgments pending full execution has increased. Moreover, the complexity and the sensitivity of the issues examined by the Committee of Ministers continue to increase. This is exacerbated by the issue faced by a number of States of insufficient capacity to execute in full the judgments of the European Court of Human Rights. 

Apart from these general trends and developments this Annual Report, for the first time, contains a country-by-country statistical overview of the current situation regarding the execution of judgments and decisions of the Court in respect of each Member State.

The Court's Own Reykjavik Memorandum

Whether coincidental or not, but after last week Lize Glas reported on this blog that the Court's own memorandum for the Fourth Summit of Heads of State and Government of the Council of Europe was not yet public, just yesterday it has been put on the Court's website. The memorandum, adopted on 20 March by the Plenary Court, is the Court's own message directed at those who will gather in the Icelandic capital next month. 

In a nutshell, it is a very diplomatically worded call to the state parties to the ECHR to put their money where their mouth is. The Court asks for commitment to the Convention system, including in the shape of providing sufficient resources. The Court squarely, and one may obviously not be surprised about this, underlines the centrality of the ECHR and its mechanisms to uphold and defend the values of democracy, rule of law and human rights which the Council of Europe stands for. It describes its own judgments and decisions as making these values concrete. In the Court's own words "A strong Court ensures a strong Council of Europe, and vice versa." - echoing in a way one of the other 'wish lists' for Reyjavik, The Hague Civil Society Declaration on Council of Europe Reform, on which we reported earlier, which states "The CoE needs civil society as civil society needs the CoE." Both documents show how the ECHR  is a legal-political ecosystem that can only function well if each of its components is in a healthy state and works productively with the others.

The memorandum has a didactic edge, pointing out how political stability, rule of law, good governance, economic growth (sic) and strong democratic institutions interrelate. It emphasises how strides have been made through the reform process of the ECHR system in the past decade, both through steps taken by state parties but also by the Court's own efforts to become more efficient, connect more strongly with domestic courts, open up to civil society interventions and more. Large swathes of the backlog of cases have been tackled, but with new waves of applications coming in, often on complex and systemic issues, the Court emphasises that its own internal improvements in working methods simply do not suffice. Not just because the quantity of cases is an issue, but also because of - as the Court identifies in a thinly veiled wake up call - political pressure on its own independence and impartiality as well as in relation to the execution of its binding judgments and decisions.

In this context it calls for strong renewed commitment by the state parties. Concretely in three areas: (1) resources; (2) accountability in inter-state and confect-related cases; and (3) execution of judgments.

In terms of resources, the shortages are made very explicit: in the last decade, the Court lost 51 posts, 7% of its staff is financed by voluntary contributions and then there is voluntary help in kind in the shape of secondments from national institutions  It also points out that, unlike other parts of the Council of Europe, it has no voluntary contributions from the part of the EU - an element that puts the ongoing (and currently seemingly almost finalised) EU accession negotiations in a different light as well. In short, as those following the Court know, there has been and still is a shortage. Concrete action to sustainably fund the Court is needed - a call that aligns with those of the other wish lists for Reykjavik.

Secondly, in terms of the inter-state and conflict related cases, the Court obviously points to the Russian invasion in Ukraine and its consequences, including Russia no longer being a party to the ECHR, but the Court still having to deal with all pending applications related to it. In addition, inter-state cases are complex and time- and resource-consuming. For all such cases, the crucial importance of accountability - and thus of means to deal with such cases - again demands support by way of funding.

Finally, in terms of execution, again the Court's call aligns with those of the other wish lists analysed on this blog last week. The vicious circle between faltering execution of judgments and the influx of new cases because of unresolved systemic or large-scale human rights issues is again identified. The fact that 4 out of 5 cases before the Court relate to issues legally clarified in well-established case-law and/or to repetitive cases, both pointing to problems in the actual implementation of the Convention more broadly at the national level. These are well-known facts of course and the Court can do little more, as it does in this memorandum, than to call for the umpteenth time for states to re-affirm their commitment to the execution of the Court's judgments.

Trying to grab the momentum - "as war rages on European soil..." (sic) - the Court with this document issues another strongly worded call which one may hope will be  finally taken up - the geopolitical context in Europe does not bode too well in that sense. The Court in the memorandum rightly calls the Convention system "the beating heart" of the Council of Europe's human rights protection. One may add: for the heart to keep functioning, it needs less stress and more oxygen - and only the states can make this happen.