Wednesday, 31 May 2023
Tuesday, 30 May 2023
Friday, 26 May 2023
Wednesday, 24 May 2023
Tuesday, 23 May 2023
Monday, 22 May 2023
'“With democracy under great pressure, the key role of arts and culture as powerful means for maintaining constructive dialogue in democratic, diverse and open societies becomes ever more evident. The right to freedom of artistic expression is a key to this and ensures the pluralism and vitality of the democratic process.” - Secretary General Marija Pejčinović Burić)
This report gives a comprehensive overview of the challenges that European artists and cultural workers face in the practice of their right to freedom of artistic expression. These range from laws that curtail creative freedom, attacks from nongovernmental groups and online threats to the “under-theradar” pressures that contribute to self-censorship.
It reflects the work carried out by the Council of Europe, other international intergovernmental organisations promoting freedom of expression and human rights, and non-governmental, civil society and cultural organisations concerned with artists’ and cultural rights, as well as the experiences and perspectives of artists. It concludes with recommendations on what can be done to protect artistic freedom, by international institutions such as the Council of Europe and by the cultural sector and artists themselves.'
Wednesday, 17 May 2023
Tuesday, 16 May 2023
''The European Court has noted that, although the European Convention on Human Rights does not prohibit the imposition of a life sentence on persons convicted of especially serious crimes, in order for the sentence to be compatible with Article 3 of the Convention, it must be reducible de jure and de facto. This means that there must be both a prospect of release for the prisoner and a possibility of review. The basis of such review must extend to assessing whether there are legitimate penological grounds for the continuing incarceration of the prisoner. In this regard, the importance of assessing the progress made by prisoners towards rehabilitation is underlined, since it is here that the emphasis of European penal policy now lies, as reflected in the practice of the contracting States.
Under the Court’s case-law, the criteria and conditions laid down in domestic law that pertain to the review must have a sufficient degree of clarity and certainty. Prisoners who receive a full life sentence are entitled to know from the outset what they must do in order to be considered for release and under what conditions. The Court has noted clear support in the relevant comparative and international materials for an initial review no later than twenty-five years after the imposition of sentence, with periodic reviews thereafter.
The present Thematic Factsheet 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 relating to life sentences: review mechanisms; conditions of detention; risk of irreducible life sentences in cases of extradition; the right to respect for family life and correspondence; and legal remedies to challenge length of criminal proceedings and lawfulness of detention.''
Monday, 15 May 2023
Here is a description of the event:
'Debates on the European Convention on Human Rights (ECHR) are awash with references to Europe, from early invocations of the ‘concept of Europe’ by Pierre-Henri Teitgen, via the idea of the ECHR as a constitutional instrument of the ‘European’ public order, to the European Court of Human Rights (ECtHR) as the ‘conscience of Europe’. Yet these references to Europe have gone largely unanalysed in academic commentary. In this presentation, I will argue that they build on the time-space of European colonialism, positing Europe as a progressive space that is hierarchically superior to non-European territories, ostensibly lagging behind Europe in civilizational terms.
I trace the ‘concept of Europe’ from early debates on the need for a specifically European human rights instrument to three areas that remain relevant to the present day: questions of territorial applicability, especially but not exclusively the so-called ‘colonial clause’ (Art. 56 ECHR); doctrinal figures developed by the ECtHR, particularly the ‘European consensus’ argument associated with the margin of appreciation; and, finally, academic and policy debates on the position of the ECHR in relation to regions outside of Europe, and of the ECtHR in relation to other human rights bodies. My claim will be that the sense of European ownership of human rights and the localization of progress as European shines through in each of these areas, and hence that the time-space of colonialism is constitutive of European identity as expressed within human rights law. In closing, I will consider the broader implications of this claim for the ECHR and what it might mean to move towards a different ‘concept of Europe’.'
Wednesday, 10 May 2023
* Rosanne van Alebeek, Larissa van den Herik, and Cedric Ryngaert, ‘Prosecuting Russian Officials for the Crime of Aggression: What About Immunities?’, European Convention on Human Rights Law Review (2023), editorial.
* Matti Muukkonen, 'Finnish Student Unions as Associations in the Context of ECHR Article 11', Nordic Journal of Human Rights (2023):
‘This study examines the applicability of article 11 of the European Convention on Human Rights (ECHR) to Finnish student unions. In Finland, student unions have not traditionally been regarded as associations within the context of the convention, based on certain old inadmissibility decisions made by the European Commission of Human Rights. Based on the case law of the European Court of Human Rights, this study shows that, despite its wording, the Convention also protects negative freedom of association – the right not to belong. Methodologically, this is a legal dogmatic study that examines the case law, particularly in terms of the criteria by which it excludes or includes some communities from its scope. The conclusion is that, if the case of compulsory membership of student unions is debated in the Court of Human Rights, student unions cannot be considered public institutions, to which article 11 ECHR has not been applicable, but should be treated as associations. This, in turn, implies that compulsory student union membership can be criticised from the perspectives of both national law and the Convention.’
* Cornelia Klocker and Deborah Casalin, ‘Discriminatory practices in armed conflict contexts: exploring (parallel) proceedings under the European Convention on Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination’, The International Journal of Human Rights (2023):
‘This article examines the approach of the European Court of Human Rights (ECtHR) to claims of discriminatory practices linked to armed conflict, as well as the more recent development of overlapping or parallel interstate claims before the International Court of Justice (ICJ) and the interstate procedure of the Committee on the Elimination of Racial Discrimination (CERD), based on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It examines the potential implications of the latter trend for the application and interpretation of non-discrimination norms, and concludes that this should encourage the ECtHR once again towards application and explicit interpretation of Article 14 in armed conflict contexts. Such an approach would recognise the gravity of any discriminatory dimensions of conflict practices; ensure consistency with the ECtHR’s own evolving case law on discriminatory violence; and facilitate harmonious interpretation of non-discrimination norms, as well as the ECtHR’s autonomous interpretation of the ECHR and participation in judicial dialogue on concepts common to the ECHR and ICERD.’
* Heidi Nichols Haddad and Lisa McIntosh Sundstrom, ‘Foreign agents or agents of justice? Private foundations, backlash against non-governmental organizations, and international human rights litigation’, Law and Society Review (2023):
‘The premise of Russia's 2012 “Foreign Agents” Law, one of the first such laws restricting foreign funding for non-governmental organizations (NGOs), is that foreign monies equal foreign agendas. Since then, over 50 countries have adopted similar laws using a similar justification. This paper interrogates this claim of foreign donor influence through examining legal mobilization by human rights NGOs at the European Court of Human Rights (ECtHR). We track donor support for litigation by providing an overview of all foundation grant flows relating to strategic litigation for 2013–2014, and then matching the granting activities of two major U.S. foundations over 14 years to human rights NGO participation in cases before the ECtHR. Further, through case studies of Russian NGOs, we assess the causal role that donor support has played in facilitating their increased involvement in ECtHR litigation. The combined analysis indicates broad patterns of private foundation support to litigating NGOs, but uncovers no evidence that foreign donors were “pushing” NGOs toward litigation as a strategy, but instead more evidence suggesting that NGOs convinced donors to support human rights litigation. Despite the inaccuracy of the justification underpinning Russia's foreign agent law, the law threatens the survival of human rights organizations.’
* Rebekah McWhirter and Martin Clark, ‘Expertise, Public Health and the European Convention on Human Rights: Vavřička v Czech Republic’, Modern Law Review (2023):
‘In Vavřička v Czech Republic, the European Court of Human Rights held that the Czech Republic's childhood vaccination policy did not contravene the Article 8 right to private life. This note presents a rhetorical and contextual analysis of the Court's engagement with questions of expertise. The majority's application of a wide margin of appreciation avoided grappling with the details of scientific and medical authority, as much as the political challenges raised by the application. We conclude by considering the wider context and limits of rights-based approaches to global public health.’
Friday, 5 May 2023
In early April this year the Council of Europe Committee of Ministers (CM) issued its 2022 Annual Report on the execution of ECHR judgments (the annual report). As usual, this report did not hit national or European media headlines, although it refers to fundamental issues concerning rule of law, democracy and human rights in European states.
The Secretary General of the Council of Europe underlined this in her statement that accompanied this time the publication of the annual report. Noting the essential role played by execution of court rulings in the rule of law context, and the positive impact of ECHR on human lives in Europe over the years, she added that “[i]n order for this positive impact to continue, our member states must demonstrate the political will to implement judgments fully and consistently." This is also one the major issues that a number of stakeholders have proposed to be on the table of the forthcoming 4th Summit of the Council of Europe (e.g. PACE Recommendation 2245 (2023) on The Reykjavik Summit).
Below an attempt is made to provide an overview of the major challenges states are faced with in the context of execution. They concern primarily their capacity to act promptly to ensure full and effective execution of ECHR judgments, a number of long-lasting challenges arising out of certain major, structural and/or complex human rights problems, and the need to further enhance the participatory character of execution at national level, engaging proactively with major national stakeholders such as parliaments, NHRIs and civil society organisations.
The data contained in the annual report clearly indicate that, although member states, under the principle of subsidiarity now enshrined in the preamble of ECHR, “have the primary responsibility to secure the rights and freedoms defined in this Convention”, the capacity of many of them to execute promptly and effectively the ECHR judgments remains feeble.
The annual report highlights that there has been a continuing rise of new judgments transmitted to the CM from the Court. In 2021 there was a 40% increase and in 2022 an additional one of 6%. This additional caseload pressure on the CM and on respondent states is arguably reflected on the fact that as of end 2022 there was a record number of 2,257 cases on which on information on payment of just satisfaction awarded by the European Court was not submitted to the CM by respondent states (1,847 of these cases concerned five states: Hungary, Romania, Russia, Türkiye and Ukraine). Also, in 2022 there was a delay by a large number of states in the submission of action plans or reports, which are due six months after the finality of ECHR judgments. Thus, a record number of 92 “reminder letters” were sent to 17 states by the Department for the Execution of ECHR Judgments which assists and advises the CM in its function of supervising execution.
Moreover, another record number of 11 leading cases/groups of cases concerning seven states were transferred the same year from standard to enhanced supervision. According to the CM working methods, in enhanced supervision are placed, in principle, cases requiring urgent individual measures, pilot, structural/complex issues related judgments, and inter-state cases.
It is also worthy to be noted that the number of leading cases, that is, cases which in principle require the adoption of general measures to prevent similar violations, despite many closures every year, remained relatively high in 2022: 1,299 (compared to 1,300 in 2021 and 1,258 in 2020). What is of particular and continuing concern in this context is that the main themes of leading cases under enhanced supervision (cf. section E.5 of the annual report) remain, more or less, unchanged for many years. They include, among others, actions of security forces (related primarily to ill-treatment and ineffective investigations), conditions of detention, length of judicial proceedings, enforcement of domestic judicial decisions, freedom of expression, freedom of assembly and association. It is to be noted that the first theme concerning actions of security forces remains the bulkiest one among the leading cases under enhanced supervision for many years (12% in 2022 and 2021, while, ten years ago, in the 2013 CM annual report the relevant percentage was 16%). There is no doubt that the above themes are cross-cutting country-wise and are often of a structural and/or complex nature requiring particular attention and action by respondent states and the CM.
This situation has not gone unnoticed by the CM which, especially since the early 2000s, has adopted and issued a number of recommendations in order to enhance states’ capacity to respond and execute effectively ECHR judgments, and embed the European Court’s case-law in their legal systems. In September 2022 the CM adopted a useful set of Guidelines on the prevention and remedying of ECHR violations. The CM underlined therein that despite the progress achieved at national level, “the Convention system continues to face significant and enduring challenges, including delays at different stages of its functioning, the persistence of serious or widespread violations, systemic and structural problems in the member States”. It strongly encouraged national decision makers to take the ECHR requirements more proactively into account. It stressed that such proactive attitude should involve in particular the development of parliamentary, executive and judicial capacity in order to incorporate the European Court’s case-law in the national legal systems.
Particularly noteworthy is that the 2022 CM Guidelines highlighted not only the pivotal role and responsibilities of the respondent States but also the fact that the execution involves many more important stakeholders at national level with whom national authorities need to synergise to achieve prompt and effective execution of ECHR judgments. Thus, the Guidelines stressed the need for member states to enhance support to national co-ordinators/co-ordinating structures, through more resources, status/authority and capacity-building so that action plans are timely prepared and they achieve notably the resolution of structural or complex problems, such as those noted above.
It takes though many more to effectively execute ECHR judgments that pertain notably to structural/complex human rights issues. As stressed by Rosalyn Higgins in one of the early and then rare publications on execution concerning such issues (1978 RevHellDI, 39), “the question of execution of decisions of the organs of the [ECHR] is a subtle and complex matter, going beyond legal formalism”.
One of the major national stakeholders in this context is national parliaments which often have to adopt new legislation in response to leading ECHR judgments requiring adoption of general measures. It is thus logical that the above Guidelines underlined the need for national MPs and parliamentary legal staff to enhance their knowledge of the ECHR system and the case-law of the Court. Secondly, and importantly, states are encouraged to further develop parliamentary mechanisms and procedures for the effective control of the execution of ECHR judgments. In a similar vein, the Council of Europe Parliamentary Assembly in its recent Resolution 2494 (2023) on Implementation of ECHR judgments, called on “human rights or constitutional committees of national parliaments to engage in monitoring the implementation of the Court’s judgments, including through taking a pro-active role in finding solutions to potential frictions with the Court, by proposing necessary legislative reforms”.
There is nonetheless much more that states can and should do in order to have a “wide national dialogue to discuss matters related to the national implementation of the Convention”. As underlined also by the CM 2022 Guidelines, there is also a need for states to strengthen and engage with NHRIs, relevant civil society organisations (CSOs) and representatives of legal professions when implementing the Convention, given their rich expertise. As regards in particular the process of execution of ECHR judgments, this engagement should also take place “at the earliest possible stage” when draft laws and policy strategies are under consideration by respondent states.
The significance of participation in the execution process of NHRIs and CSOs had been highlighted by the CM already in 2006 when for the first time the CM Rules allowed the submission by NHRIs and CSOs of communications to the CM on the execution of ECHR judgments. Over the years, such communications have proven to be of particular value to the CM and have helped it have a more comprehensive picture of the human rights issues it examines. The NHRIs and CSOs’ communications have increased over the last years: from 47 in 2011 they reached 217 in 2022. However, the vast majority originate in CSOs, the NHRIs’ submissions remaining low (17 in 2022 and 11 in 2021). The enhancement of NHRIs’ engagement in the execution process is thus an important issue linked also to states’ national capacity, given the important human rights advisory role vis-à-vis national authorities that these institutions play.
When the 2012 Brighton Declaration proposed the inclusion of the principle of subsidiarity in the preamble of ECHR, it also recalled the states’ obligation and commitment to secure the human rights enshrined therein (cf. Explanatory Report to Protocol No 15 to ECHR). Indeed, the execution of ECHR judgments takes place “at home” and not in Strasbourg where only the supervision of execution happens. When structural or complex problems at national level arise, the execution process is certainly also complex and takes more than two (the respondent government and the CM) “to tango”. It requires the synergies of all the above-mentioned major national stakeholders.
The Council of Europe provides a wide range of cooperation projects to member states in this context and many of them have been benefiting therefrom for decades now. However, if lacunae persist in the national process of implementation of the Convention, including the execution of ECHR judgments, such lacunae are bound to affect and be reflected on the supervisory system itself which has been set up. The 2022 annual report provides a clear picture of these challenges, and the 2022 CM Guidelines propose a wealth of advice to member states on which the latter may draw in order to further reinforce their capacity to execute the ECHR judgments. To this end, political will is key. The 4th Summit of the Council of Europe on 16-17 May provides another opportunity for member states to demonstrate that they have this will and say their own “yes we can”.