Book Launch: Law of the European Convention on Human Rights (5th ed)

On Wednesday 14 June 2023, the Human Rights Law Centre (HRLC) of the University of Nottingham is hosting a book launch for the fifth edition of the textbook 'Law of the European Convention on Human Rights', co-authored by 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). 

Here is a short description of the event:

''The Human Rights Law Centre (HRLC) will be hosting the launch of the latest edition of 'Law of the European Convention on Human Rights', published with OUP. This event will take place from 2 to 4pm UK time (BST) in the University of Nottingham's Monica Partridge Building (Room C14) and online via MS Teams on Wednesday 14 June 2023.

To celebrate the launch of the new edition of this seminal text, the HRLC will be joined by Zoë Bryanston-Cross (Registry, Council of Europe) and Krešimir Kamber (Registry, Council of Europe) to discuss the evolution of the European Convention on Human Rights and its impact on human rights law in Europe and beyond. The discussion will also delve into the challenges facing the European Court of Human Rights.

The event will be chaired by Sangeeta Shah, Professor of International Law and Human Rights and HRLC Co-Director.

The first edition of Law of the European Convention on Human Rights was co-authored by Emeritus Professor David Harris, Mr Michael O’Boyle and Professor Colin Warbrick and published in 1995. It quickly gained recognition as the authoritative text in the area. This new fifth edition – published 28 years later - provides a fully updated, rigorous and comprehensive analysis of the work of the European Court of Human Rights and the rights protected by the ECHR.

The latest edition is co-authored by former HRLC Co-director and Founder, Emeritus Professor David Harris, Mr Michael O’Boyle (former Deputy Registrar of the European Court of Human Rights), Dr Ed Bates (University of Leicester) and Ms Carla M Buckley (International Human Rights Lawyer). They were joined by Krešimer Kamber, Zoë Bryanston-Cross, Peter Cumper and Heather Green.

Whether attending in person or online, this is a great opportunity to learn from some of the leading experts in the field of human rights law and to celebrate the launch of this important new edition.''

You can register here. 

Lecture on Media Pluralism under the ECHR

On Wednesday 31 May the Bonavero Institute of Human Rights of the University of Oxford is organizing the Eric Barendt Annual Media Law lecture entitled 'The Concept of Media Pluralism under the European Convention on Human Rights - Substantive Principles and Procedural Safeguards'. The lecture will be delivered by former ECtHR president Robert Spano.

Here is a short description of the lecture:

''European systems have long had rules in place to secure pluralism in media ownership and to ensure that audiences are exposed to diverse content.  The role of those regulations has come under increased scrutiny in recent years, as a result of political polarization and access to international media sources. In NIT Srl v Republic of Moldova (2022), the Grand Chamber of the European Court of Human Rights considered the compatibility of rules requiring political impartiality and neutrality in broadcast media coverage with Article 10. In its decision, the Court considered the balance to be struck between two important components of media freedom: pluralism in media content and editorial freedom. Taking this decision as a starting point and drawing on his time as President of the Court, Professor Spano will examine the evolving Article 10 jurisprudence and the role of the ECHR in promoting media pluralism.''

You can register here to follow the lecture online. 

15 Years ECHR Blog!

A walk with a friend through Brussels in 2008. That is when the idea for the ECHR Blog first started to bubble in my mind. Today this blog with this post (no 1281!) marks exactly its 15th anniversary since its first post on 26 May 2008. 

15 years ago, academic blogs were still a very new phenomenon. Law-related blogs barely existed. The friend (and wise scholar) with whom I wandered through Brussels, Jacco Bomhoff, had created one of the first ones in English in Europe, on comparative law. His enthusiasm for blogging and my own quirky predilection of being an amateur editor and lover of a graphic design (ever since my days as a highschool journal editor) and our walking conversation on how nice it would be to have a blog on European human rights propelled me into action once I returned home to Utrecht. So thank you, Jacco, for proving once again that the best ideas are developed while walking and in conversation with others. Artistotle's peripatetic method is still going strong!

Pracademics

Since its creation in 2008, the ECHR Blog has tried to chart new waters by being a combination of news on judgments and decisions of the Court, wider developments around the Court and Council of Europe and academic publication and events on ECHR-related topics. It thus in effect has aimed at two audiences: both practitioners and academics, including so-called 'pracademics' as one could describe many of us in the human rights community. It is now of course far from the only one doing so - the blogosphere has become much more crowded, with later created fantastic colleagues like EJILTalk! and Strasbourg Observers to name just two English-language ones who publish on the ECHR. From very special and small niche blogs on micro-topics within law to broad, newspaper-type blogs like the prolific Verfassungsblog. And of course, blogs are now just one among many outlets through which academics find and publish information beyond the traditional means - from Twitter and Mastodon to podcasting or even making animations (see one example of mine here) about one's research. Undoubtedly, soon AI will further new ways, welcome or not, of spreading and (re-) creating academic knowledge, also posing new challenges to what curated (academic) content entails.

Obviously, the usage of blog posts has also greatly developed. Initially considered only for mere quick thought experiments and seen as a quirky outlet for academics, blog posts are now fully accepted references in academic work (sometimes too easily so in student work without going to more fundamental primary sources). Like other forms of publications, the curated way of posting, including (fast track) review processes, in diverging degrees of quality, is crucial for the reliability of blogs. The subject-matter expertise of the small team running this blog as well as the knowledge of the people who submit posts helps to keep up the quality standard (although no doubt we too may have had glitches in precision at times).

It's teamwork, stupid!

On countless occasions, I have been asked how many people were working on the blog behind the scenes and my answer for the first twelve years - no one else, just me - was met with incredulity in the eyes of the person asking the question. Yet, the question was pertinent and in hindsight I do not always understand how I kept it running for so long on my own - it was indeed too fragile. I am thus indeed very happy that in the last few years, the blog has become teamwork within its home base, our Netherlands Institute of Human Rights (SIM). In 2020 fellow ECHR specialist (and the academic who personifies kindness in the workplace for that) Kushtrim Istrefi joined me in running the blog and has greatly helped to modernise it, including its new look since that time. And in 2020 our team was further strengthened with the addition of the great Matilda Radoš as assistant editor. And behind the screens subsequent SIM student assistants, currently the wonderful Annida Aqiila Putri, have helped to collect ECHR publications. The teamwork has obviously greatly improved the sustainability of the blog, led to renewal and enables it to post much more regularly. A huge thanks to all of you! 

Still, the blog has been running on our own enthusiasm and over-hours with no single dime of funding ever, reflecting in that sense a true labour of love (although this raises other tough discussions on academic overstretch obviously!) and helping us to maintain our independence. And we, as editors, very much feel that love and interest in the blog being reciprocated. Like any medium a blog is nothing without its readers.

And there is also the direct community of fellow academic bloggers, social media users and journalists writing about human rights. I use community here on purpose as this blog functions not only in the standard networked way. This function has been very important in itself. Without the kind mutual linking of fellow blogs at the outset no one would have found out about this blog. And without the attentive friends - from fellow academics pointing us to workshops, conferences and publications or submitting very welcome guest posts to lawyers, civil servants, and even judges who provide us with input - this blog would be nowhere. 

Nowadays, social media are almost a staple way for academics to self-promote their research and expertise. This can at worst lead to fragmentation of outlets, an emphasis on the individual rather than the collective and even have a narcist edge. But at best it forges new connections. How happily amazed I was when I met ECHR experts from Japan at an academic conference in Germany who told me they had found out about the event because of my blog. And my post on the Court's landmark Rantsev judgment led to a front page article on human trafficking in one of the major Dutch national newspapers. 

But much more importantly, the blog has aimed to offer a platform for insights and publications from both new and established names, getting their writings out in much faster ways than books or journals would (and promoting the latter two once they are published). It thus indirectly has helped to forge connections with people with the same interests ('Aha, another crazy aficionado for the procedural aspects of Article 2!'). Also in that sense, it has hopefully helped to contribute to an ever-growing international Republic of Letters of scholars and students interested in the ECHR and human rights more widely.

Living instrument

Looking back to 15 years of ECHR blogging, I am happy to see it could reach so many readers. An anniversary milestone cannot do without some statistics and here they are: 1281 posts to date (this one included) and a staggering 3,362,367 pageviews. Our readers obviously come mostly from Europe, but also from far beyond it. When I looked up the geographical location of our readers, virtually every country in the world was included, even places where human rights information is censored or blocked online. This also means that students who otherwise have little means of accessing knowledge on human rights in any affordable way have at least a small portal to information about the ECHR and its Court.

In terms of what gets read, the idea from the outset of the blog, a platform of use for both academics and practitioners, is reflected in our most read posts. In the top five since the blog's creation there are two commentaries on judgments (on copyright versus freedom of expression and on the Women on Waves judgment), two posts on very practical matters (an admissibility criteria checklist and a post on states with structural or systemic problems) and - not a surprise - a commentary on the Covid-19 pandemic and the ECHR. Two of these five are guest posts, including the most read one - showing how much this blog grows on the fertile ground of expertise and input from beyond the core team.

May this blog remain, as I wrote in its first post, a living instrument which feeds into the needs and curiosities of its readers. All contributions and suggestions of you, our readers, remain very welcome. On to the next 15 years!

Antoine Buyse, founder of the ECHR Blog

PS: As our attentive readers may have noticed, in all those years we tried to use a different picture or photo for every single post. Today, I am making an exception by re-using the illustration of the very first post from 2008, a map of Europe from Joan Blaeu's famous 17th-century Atlas Maior.

New Book on Persuasion and Legal Reasoning in ECtHR Rulings

Aleksandra Mężykowska and Anna Młynarska-Sobaczewska, both of the Institute of Law Studies of the Polish Academy of Sciences, have just published a new book entitled Persuasion and Legal Reasoning in the ECtHR Rulings: Balancing Impossible Demands. This is the abstract:

''This book analyses the case law of the European Court of Human Rights (ECtHR) from the point of view of argumentative tools used by the Court to persuade the audience – States, applicants and public opinion – of the correctness of its rulings. The ECtHR judgments selected by the authors concern justification of some of the most difficult issues. These are matters related to human life, human dignity and the right to self-determination in matters concerning one’s private life. The authors looked for paths and repetitive patterns of argumentation and divided them into three categories of argumentative tools: authority, deontological and teleological. The work tracks how ECtHR judges aim to find a consensual, universal and, at the same time, pragmatic and axiologically neutral narrative on the collisions of rights and interests in the areas under discussion. It analyses whether the voice of the ECtHR carries the overtones of an ethical statement and, if so, to which arguments it appeals. The book will be of interest to academics and researchers working in the areas of jurisprudence, human rights law, and law and language.''

The digital version is published open access and can be found here.

Call for Authors for Book Project ''Intersectional Rewrites: ECtHR Judgments Reimagined''

We had not yet reported on it here, but last month a call for authors was issued for the book project ''Intersectional Rewrites: European Court of Human Rights Judgments Reimagined''. The book project aims to analyze and rewrite judgments of the European Court of Human Rights from an intersectional perspective. 

Here is a description of the project and the call for authors:

''We are inviting proposals to contribute to an edited book, “Intersectional Rewrites: European Court of Human Rights Judgments Reimagined”. In this book, authors will offer their own versions of impactful decisions from the European Court of Human Rights from an intersectional perspective.

The Intersectional Rewrites Project

The European Court of Human Rights often fails to recognise the complexity of compounded harms people experience as a result of multiple marginalisation. “Intersectional Rewrites” imagines a jurisprudence that takes account of the social, economic, and political conditions significant to the lives of people who are multiply marginalised. The book aims to contribute to a broader endeavour of critical rewrites (such as the feminist judgments projects) through an exclusive focus on the critical paradigm of intersectionality. We are currently in conversation with several major publishers to secure the best distribution for our intended audience, and to realise open access.

An Intersectional Perspective

By “intersectional perspective” we mean drawing on Black feminist and critical race theory insights that highlight the significance of multiple and mutually influencing vectors of social division such as gender, sexuality, race, ethnicity, religion, ability, and nationality. In this project, intersectionality serves as a lens to make visible and legible the harms that arise from multiple marginalisation within the context of a European jurisprudence of human rights.

Authors

We are seeking submissions from a diverse group of scholars, researchers, practitioners, activists, and advocates, interested in drawing on their expertise on intersectionality to analyse and rewrite the jurisprudence of the European Court of Human Rights. “Intersectional Rewrites” will present 15 reimagined recent judgments from the Court selected from case law since 2020 that cover a wide range of European countries, legal fields, intersecting identities, and harms. In order to support a diverse group of contributors we are offering a modest honorarium of 500 euro to those who engage in this work outside of a salaried position.

Contributions

Authors will be invited to develop a chapter for “Intersectional Rewrites”, which will have a 5000-7000 word limit to be written in the style of the ECtHR. The core of the rewrite will centre on a reimagining of key passages from the original judgment, and will include a statement of the facts, violations of the Convention, and the conclusions. Rewrites will include a maximum 1000-word reflection from the authors as to their approach, salient considerations, and reflection on choices made in the reimagined judgment.

Process and Timeline

We are aiming to have the community of writers composed by 30 June 2023.

Authors will be invited to a 2-day workshop in the Netherlands in February 2024 to discuss first drafts of their chapters. First drafts are expected to be shared at the beginning of 2024. We will also organise an introductory Zoom meeting to talk about the Intersectional Rewrites project with all the contributors after which draft proposals for a rewrite should be shared.''

Expressions of interest can be made by filling out the form available here. The deadline is 31 May. 

New Report on Freedom of Artistic Expression in Europe

The Council of Europe has published a new report, authored by Sarah Whyatt, on the freedom of artistic expression in Europe, entitled Free to create: artistic freedom in Europe. it includes an overview of the state of artistic freedom in Europe ass well as an overview of global and ECHR standards and a discussion of several topical issues, ranging from the status of artists to self-censorship. This is the abstract:

'“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.'

The Reykjavik Summit and Declaration

Long-awaited, the fourth ever Council of Europe Summit has been taking place yesterday and today in Reykjavik's Harpa Concert Hall and Conference Centre. As the Council itself called it, "[a]n historic opportunity for the Council of Europe to refocus its mission, in the light of new threats to democracy and human rights, and to support Ukraine." 

The rhetorical question, both before and after the Summit, remains: has this historical opportunity been seized? It is, for one, palpably clear that the Council of Europe has become a less central player in what has been called "the very crowded marketplace of European institutions" and that summits like this risk being nothing more than a "diplomatic sugar rush". This is both a long-term development and a short-term one. 

Long-term in the sense that with the waves of enlargement of the European Union, 'Strasbourg' has become much less central to the concerns and interests of now more than half of the Council of Europe's member states, the important progress in the accession of the EU to the ECHR talks notwithstanding. 

Short-term in the light of French President Macron's quixotic initiative of a European Political Community launched last year and followed up this year, with an almost complete overlap in membership with the Council of Europe. Ironically, at the same time, the Council's main mission of promotion and protection of the rule of law, democracy and human rights - and this is almost a trope by now - has become more urgent then ever, both in the face of renewed war in Europe and backsliding developments in quite a few of its member states.

With the city centre partly closed off for traffic and Icelandic airspace patrolled by the British Air Force, Iceland for less than 24 hours was a virtual fortress in the Atlantic. While for some heads of state or government, this was a good opportunity to show European unity, most clearly in the face of the Russian invasion of Ukraine, for others it was a mere podium to try and tackle domestic concerns. An example of the latter is UK Prime Minister Rishi Sunak rather in vain trying to get backing for his Rwanda agreement style policies to tackle illegal migration. This, by the way, received a rather cold response in the Icelandic capital, especially on the point of trying to reform the ECHR system to fit this specific domestic political need.

Beforehand, the calls for what was needed for the Council of Europe, on which we reported here and here, were not exactly matched by expectations of what the Summit would actually produce. To give a last minute boost, just before the start of the Summit, Amnesty International in a piece on Politico argued for the need to match words with actions. In other words, to go beyond another lofty Declaration. Looking at it as it happened, the Summit seems to have been more of a symbolic, yet still important, showing of unity (and even that not entirely) but not so much more. 

The outcome is a Reykjavik Declaration entitled 'United around our values'. It revolves around the dual aim of the Summit, namely to stand united against Russia's war on Ukraine and to establish clearer priorities and direction to the work of the Council of Europe as an organization. 

On the first aim, the Summit can indeed be seen as a reflection of unity, but also a little bit more. The member states do not only call for Russia's withdrawal from Ukraine but also from Moldova and Georgia. And one of the very few concrete results coming out of the Summit being the creation of a registry of damages caused by the Russian invasion of Ukraine (see for more background here). It is meant to be the first step in a future international comprehensive compensation mechanism. Next to all the endeavours undertaken elsewhere in terms of criminal law and accountability, this can be seen as a complementary effort to prepare for reparations for all those suffering from the violations of human rights and international law in the current war.

On the second aim, as expected at least in wording, the states reaffirm their "deep and abiding commitment" to the ECHR and the European Court of Human Rights. One could say that the states have tried, again at least in words and accompanied by hopefully some action, to strengthen the three core values of the Council of Europe: human rights, the rule of law and democracy. 

First, human rights by "re-doubling" their own efforts to take their obligations under the ECHR system seriously, including. most eminently in the implementation of the Court's judgments. A whole appendix is dedicated to this, entitled "Recommitting to the Convention System as the cornerstone of the Council of Europe’s protection of human rights”. Equally, the strengthening the office of the Commissioner for Human Rights is mentioned. 

As to the Court, the states recognise that it does not have sufficient (financial) means to do its work effectively, as the Court had itself indicated in the run-up to the summit, and promise to "[e]nsure the allocation of sufficient and sustainable resources to enable the Court to exercise its judicial functions effectively and to deal with its workload expeditiously." The devil is in the details of course, as this does not clarify the eternal discussion whether more funding for the Court should be budget-neutral and thus go at the detriment of other work of the Council of Europe or whether the states are truly committed to put their money where their mouth is and increase substantially the funding for the Court. Whether this will happen will become clear only in the future budgets of the Council of Europe, and the states have given no clear sign that they are prepared to substantively raise their structural contributions. This key issue has thus not been solved in Iceland.

Secondly, the rule of law by strengthening the visibility and work of the Venice Commission, including its rule of law checklist.

And thirdly, democracy, through the new "Reykjavík Principles for Democracy" - a much needed impetus for the third value pillar of the Council of Europe on which it has traditionally spent the least means but whose fragility can no longer be ignored. The Principles read as a summary guidebook of what political scientists would call deep or high-quality democracy. Democracy as more than just elections, in other words, but also including broad participation, free media and a vibrant civil society.

But the prioritisation has only gone so far, as readers of the Declaration will also discover a host of other topics on which the member states want the Council of Europe to work, most pre-eminently the environment (on which more action is promised and may follow in the coming years, also in terms of standard-setting), but also social justice, gender equality, protection of children, modern information technologies, and much more. A so-called Reykjavik process should make the environment a "visible priority" of the organisation. 

In a nutshell, the states have not really made choices, but seemingly only added new priorities - in the age-old discussion between states in favour of the Council only focusing on its three core goals in a narrow way and those seeing a much broader role for the organisation, the latter group seems to have prevailed once again. There is something in this declaration for (almost) everybody, but without a clear sustained effort to fund all these 'priorities'.

Only history will tell if the Icelandic Summit was a new breath of life for the Strasbourg institutions - in the words of the Council of Europe's Secretary General Marija Pejčinović Burić at the Summit potentially reflecting a reconfirmed determination to democratic reconquest (my translation of her words spoken in French) - or just a nice photo opportunity for politicians. In the face of the seriousness of democratic and rule of law backsliding and the threats to human rights protection, one may strongly hope the Secretary General will be right, but hard work and political and financial  commitment is crucial to get there.

New Thematic Factsheet on Execution of ECHR Judgments Concerning Life Imprisonment

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 execution of ECHR judgments concerning life imprisonment. Here is a brief description:

''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.''

Event: 'The Concept of Europe: Progress, Colonial Continuities, and the ECHR'

On 16 May from 13:00-14:00, the Centre for European Law and Internationalisation of the University of Leicester is organizing an online event entitled ''The concept of Europe: Progress, colonial continuities, and the European Convention on Human Rights''. During the event, Dr Jens T Theilen (Helmut-Schmidt-University Hamburg) will give a presentation on the meaning of the references to 'Europe' in the European Convention on Human Rights.

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’.'

New ECHR Readings

Please find below a new selection of academic readings on the European Convention of Human Rights and its Court:

* Tobias Mortier, ‘Reprehensible or Legitimate Aims? A Proposal for a New Approach to Article 18 ECHR in Light of its Predominance Test’, European Convention on Human Rights Law Review (2023):

‘The European Court of Human Rights (ECtHR, Court) finds a violation of Article 18 of the European Convention on Human Rights (echr) if the respondent authorities simultaneously pursued both a legitimate and hidden aim (plurality of aims), provided that the latter was the predominant one. The Court establishes this predominance by considering the ‘nature and degree of reprehensibility’ of the hidden aim. I argue that this reprehensibility criterion has not been applied in a consistent manner, resulting in unpredictability as to the true meaning behind it. The Court either interprets this as an assessment of contextual factors or as an impact assessment, and sometimes even applies it in the absence of a plurality of aims. This article points out the flaws in these different interpretations and formulates recommendations in order to determine where these interpretations would be most aptly applied under Article 18; the former under the predominance test, the latter as a new threshold criterion.’

* 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.’

It Takes More than Two to Execute ECHR judgments

By Nikolaos Sitaropoulos*

Introduction

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 4^th 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.

 

Challenges related to states’ capacity to execute promptly and effectively ECHR judgments

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. 

Such “trigger ups” may also occur in practice if there exist other indications, such as slowness in execution, showing that the execution of a judgment requires the CM’s particular attention, notably through examination of this case in one of the four CM Human Rights meetings in Strasbourg, and reinforced dialogue with and support (through Council of Europe expertise) to the national authorities concerned.

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.

Conclusion

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 4^th 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”.

*The author is head of division in the Department for the execution of ECHR judgments, Council of Europe. All views expressed are strictly personal.