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 css@cure-campaign.org . A list of endorsements will be posted (and regularly updated) here. 

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 States, Carême 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.''

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.

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'

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.''

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.''

New Textbook: Fundamental Rights, The European and International Dimension

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

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

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

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

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

Here is a brief description of the symposium:

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

The program can be found here.

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

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

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

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

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

Hybrid Workshop on Russia and the Council of Europe

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

Here is a brief description of the event:

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

New ECHR Readings

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

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

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

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

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

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

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

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

- The Evolving Jurisprudence of the European Court of Human Rights on Domestic Abuse (p. 205);

- The International Debate on AI Regulation and Human Rights in the Prism of the Council of Europe’s CAHAI: Great Ambitions (p. 225);

- Human Rights and Social Media: The European Court of Human Rights in the Digital Era (p. 253);

- The Freedom of Expression of the Judiciary as a Special Case of State Personnel: A European Human Rights Perspective (p. 283);

- Exploring Narratives about ‘Cancel Culture’ in UK Educational/ Employment Settings under the ECHR (p. 309);

- Consistency, Coherence and the Turn Towards Procedural Review in the European Court of Human Rights (p. 345);

- The Execution of ECtHR Judgments Related to Inter-State Disputes (p. 379);

- Lessons from the Inter-American Human Rights System to Further Utilise the Potential of NHRIs in the European Convention System: From Contextualisation to Inspiration? (p. 409);

- The Turkish Post-Coup Emergency and European Responses: Shortcomings in the European System Revisited (p. 445);

- Militant Democracy in the ECtHR Case Law on Genocide Denial Bans (p. 483);

- From the Right to Science to the Right to Open Science: The European Approach to Scientific Research (p. 515);

- Religious Accommodation before the European Court of Human Rights: Moving Forward a New Approach Towards Religious Minorities? (p. 543).

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

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

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

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

On 6 February 2023, Türkiye and Syria experienced two devastating earthquakes which affected the lives of more than 24 million people. The death toll has passed 30.000, and the UN fears that the figure could double. The number of injured and homeless people is far worse. According to Ross Stein, the head of catastrophe modelling company Temblor, “the number one factor [was] building quality”. Other seismologists and engineers argue that building standards and failure to enforce them have contributed to a high death toll. 

 

These claims trigger a set of questions from a human rights standpoint. In particular, while no doubt that loss of life and destruction of property is expected following a 7.8 magnitude earthquake, the question is whether the State had taken all the necessary measures to minimise the loss of life (Article 2 ECHR), protect the right to private and family life (Article 8 ECHR), and prevent the destruction of property (Article 1 of Protocol No. 1). 

 

The European Court of Human Rights has found in M. Özel and Others v. Turkey that, while States have no control over earthquakes, they are under an obligation to adopt “measures geared to reducing their effects in order to keep their catastrophic impact to a minimum. In that respect, therefore, the prevention obligation comes down to adopting measures to reinforce the State’s capacity to deal with the unexpected and violent nature of such natural phenomena as earthquakes” (para. 173). The Court has further explained that such measures include “appropriate spatial planning and controlled urban development” (para. 174). Even though the complaint was out of time, the Court found it relevant to note that “the local authorities which should have supervised and inspected [the respective] buildings had failed in their obligations to do so” (para. 175).

 

The Court’s approach in M. Özel and Others v. Turkey confirms States’ positive obligations to protect the right to life also in the context of natural disasters, including earthquakes. The ECtHR is mindful that protection of all lives is not always possible. After all, the duty to protect the right to life is one of means and not of result. However, the Court has clarified that  domestic “authorities must take appropriate care to ensure that any risk to life is minimised” and it must be examined whether they “were not negligent in their choice of action”. The Strasbourg Court has noted the requirement on states to “undertake any measures within their powers that could reasonably be expected to avoid, or at least mitigate risk”.

 

It appears that even the Turkish authorities have acknowledged that the death toll in this and previous earthquakes have been connected to poor construction. Following the 2011 earthquake in Türkiye, Erdogan blamed poor construction for the (then) high death toll, and argued that the negligence of municipalities, constructors and supervisors amount to murder. As in the aftermath of 2011 earthquake, the Turkish authorities have issued numerous arrest warrants and have already arrested a number of contractors whose buildings collapsed in the 2023 earthquakes. In short, there appear to exist prima facie scientific arguments and political acknowledgment by the Turkish authorities that the death toll and destruction of property in the past and recent earthquakes are also connected to bad construction and human negligence. 

 

It must be noted that criminal prosecution of contractors whose buildings collapsed does not fully satisfy States’ obligations under the right to life. This is only one post factum obligation. Türkiye’s obligations under the ECHR remain also with regards to the obligation to prevent the loss of life, which includes two positive obligations. First, to issue adequate building permits and enforce the requisite construction regulations to prevent loss of life during earthquakes, and, second, to undertake adequate operational measures to search and save lives after the earthquake.

 

While many victims remain missing under the rubble, and those found need food, medical care and shelter, the focus must remain on search and rescue operations, aid and solidarity with the victims. Yet, the human factor involved in this tragedy merits an in-depth discussion also about the accountability for failure to take the necessary measures to protect the right to life as guaranteed by the European Convention on Human Rights.

The ECtHR's Future Processing of Applications against Russia

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

New Thematic Factsheet on Climate Change

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

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

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

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

The recording of the lecture can be watched here! 

Annual Press Conference of the President of the ECtHR

On Thursday 26 January 2023, the President of the ECtHR Síofra O’Leary held a press conference during which the Court's activities and statistics for 2022 were presented. President O'Leary began the conference by stating that the year 2022 was marked by Russia's invasion of Ukraine, its expulsion from the Council of Europe and its withdrawal from the Convention. It was stressed that these serious events have had important legal consequences for the Court, for instance for its competence to deal with applications against Russia. 

During the press conference the President provided some statistics on the activities of the Court in 2022. The past year was a year in which the Court was extremely active: it issued a total of 1163 judgments, which is the highest number of judgments since 2012. All statistical information about the activities of the Court is included in the Court's latest annual report. 

The President furthermore pointed out some relevant developments in 2022. These include, amongst others, the reduction of the time-limit within which an application can be filed to the Court from six to four months from the date of the final judgment at the national level according to Protocol No. 15 to the Convention, and the launch of the Court's Knowledge Sharing Platform (ECHR-KS). 

A video of the press conference is available here. 

Expert Workshop on Climate Change, Human Rights and ECHR

On 14 April 2023, the European University Institute (EUI) is hosting an expert workshop in Florence on Climate Change Cases before Human Rights Courts and Treaty Bodies. The workshop, organized by the Law Department of the EUI together with the PluriCourts Centre of Excellence of the  University of Oslo and the IUCN World Commission on Environmental Law, focuses on human rights litigation before the United Nations human rights treaty bodies and regional human rights courts as a means of combating climate change. The workshop will, amongst others, discuss the pending climate change cases before the Grand Chamber of the ECtHR (Duarte Agostinho and Others v. Portugal and 32 other states; Carême v. France, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland). The workshop will be followed by a PhD Colloquium on 15 April 2023. 

Here is a brief description of the workshop:

'Climate change is one of the main challenges facing humanity today. Without rapid and decisive action, it will be the main challenge, an existential threat to people and other living organisms. There are many approaches to combating climate change, including intergovernmental negotiations and action through international organizations, social mobilization and protest, efforts to engage corporations and the business community to cut greenhouse gas emissions, and searching through the repository of law for tools that could be used to compel the unwilling. This one-day expert workshop followed by a PhD colloquium will focus on legal tools in the field of human rights and the prospects of human rights litigation for turning the tide of climate change. While taking into account developments in domestic law, general international law and international environmental law, the event will in particular explore developments in and prospects of human rights litigation before regional human rights courts and international human rights treaty bodies in trying to address climate change and its adverse effects as they constitute or cause human rights violations. 

The expert workshop of Friday 14 April will run in the format of plenary sessions from 9.00 to 18.30 and include a lunch break and two coffee breaks. The PhD colloquium of 15 April will be from 9.00 until 12.30, based on papers and presentations by PhD researchers.'

The program can be found here. 

New Icelandic and Danish Judges Elected

Earlier this week, on Tuesday, the Parliamentary Assembly of the Council of Europe elected two new judges to the European Court of Human Rights, in respect of Denmark and Iceland.

The new Danish judge will be Anne Louise Haahr Bormann. she has professional experience in working at the Danish Ministry of Justice, including heading its law department. Subsequently, she has also worked in the Danish judiciary at various levels, including as a Supreme Court Judge and as Vice-president of the Labour Court. She was also Vice-chair of the Press Complaints Board in Denmark. 

The new Icelandic judge will be Oddný Mjöll Arnardóttir. A well-known human rights law academic with particular expertise on the ECHR, she defended her PhD thesis at the University of Edinburgh in 2002. on the topic of “Equality and Non-Discrimination in the European Convention on Human Rights; Towards a Substantive Approach”. After having worked as a practicing lawyer at the start of her career, she worked for many years at various Icelandic academic institutions, teaching and researching about the ECHR as a professor of human rights. Subsequently, she entered the Icelandic judiciary, serving on the Court of Appeals and the Court on Reopening of Judicial Proceedings. She was also an ad hoc judge at the Icelandic Supreme Court and and ad hoc judge in three cases at the European Court of Human Rights itself.  

Both were elected with for the non-renewable term of nine years and will start on within three months. Warm congratulations!

Webinar on Ukraine v. Russia before the European Court of Human Rights

On 1 February, the Walther Schücking Institute for International Law at the Christian-Albrechts-Universität (Kiel) will hold an online seminar entitled "Of Parties, Third Parties, and Treaty Intertretation: Ukraine v. Russia before the European Court of Human Rights". The speakers include Isabella Risini and Justine Batura. 

Here is a brief summary of the event:

"An unprecedented number of member States have requested permission to intervene in the case Ukraine v. Russia (X) before the European Court of Human Rights. The significance that can be ascribed to these interventions goes beyond a mere expression of solidarity with Ukraine. Not only are these third-party interventions a timely and much needed opportunity for States to express their support for the European regional human rights system and convey legitimacy to the later judgment. The procedural instrument under Art. 36 § 2 ECHR also provides States the prime opportunity to express views on the interaction of international humanitarian law and human rights law in the wake of Georgia v. Russia (II). In this edition of the “Völkerrechtliche Tagesthemen”, Justine Batura and Isabella Risini discuss the context and value of the third-State interventions. 

A critical assessment of this phenomenon will be part of the presentation. While it is true that more than half of all member States of the Council of Europe have expressed interest in intervening as third-party in Ukraine’s application concerning the Russian full-scale invasion in February 2022, it is also worthwhile noting that the States in question also could have submitted their own application against Russia. Member States’ interest in this conflict, which started back in 2014, is also relatively recent."

To register for this event, you must send an email to tagesthemen[at]wsi.uni-kiel.de.

New Handbook on the ECHR

Mark Villiger, former judge at the European Court of Human Rights and professor emeritus at the University of Zürich, has just published a new Handbook on the European Convention on Human Rights with Brill. It is oriented towards practice and covers both the organisation of the Court itself, procedural and substantive issues - all in one volume. A welcome addition to the growing landscape of ECHR  handbooks!  This is the abstract:

'In clear and concise words, this Handbook offers a comprehensive and up-to-date overview of the European Convention and the European Court of Human Rights and its case-law. Numerous cross-references guide the reader through the various topics. Various summaries condense the different principles of the Court’s case-law. 

The Handbook has been written largely for practitioners such as lawyers, judges and persons in administrative functions, but will also be invaluable to university teachers and academic researchers. Meticulously compiled, authoritative and practical, it is a must-have resource for anyone concerned with the protection of human rights in Europe. 

The author served as a Judge at the Court for nine years, three of them as Section President. He is a retired Professor for International and European Law at the University of Zurich in Switzerland. 

With a Foreword by Judge Robert Spano, President of the European Court of Human Rights.'

New Book on Combating Hate Speech During Electoral Processes

The Council of Europe has published the new book Toolkit on combating hate speech during electoral processes. Here is a brief summary:

'Freedom of expression is enshrined in the European Convention on Human Rights and protects citizens from interference with their right to freely express their opinions. This freedom is essential when it comes to the electoral process which, like any competition, has a strict framework of rules. Freedom of expression must not give rise to hate speech that would undermine the electoral process by polluting the campaign and political debate necessary for voters to make an informed choice.

This toolkit is intended to explain the international standards applicable in this respect, provide tools and strategies that can be used by election management bodies to counter hate speech harmful to free electoral competition and describe the Georgian experience in this area.'

New Book: Taxation at the European Court of Human Rights

Robert Attard (EY and University of Malta) and former ECtHR judge Paulo Pinto de Albuquerque (the Catholic University of Portugal) have published a book entitled Taxation at the European Court of Human Rights. Here is an overview of the book:

Taxation at the European Court of Human Rights is a first-of-its-kind to critically analyse over 500 of the European Court of Human Rights (ECtHR’s) important ‘tax cases’, which create a human rights code of conduct for European Convention on Human Rights (ECHR) State Signatories in matters involving taxation. Albeit the ECHR mentions taxation only once – and in a context that, rather than conferring rights, limits their application – references to public prerogatives pertinent to taxation are present in several of the ECHR’s articles, giving rise to an implied normative framework that has influenced the tax jurisprudence of the ECtHR. Especially given the enormous impact of the famous Yukos cases, the ECtHR has made it abundantly clear that tax policies of State Signatories must be regularly stress-tested against the requirements of the Convention.

In this book, relevant articles of the ECHR are each addressed by a detailed analysis of successful and non-successful tax cases flowing from it. The following invaluable knowledge base and guidance on the ECHR’s relevance to taxation have been furnished:

• the ECHR’s legal concept ‘margin of appreciation’ and the ECtHR’s supervisory jurisdiction in taxation matters;
• the legal avenues to impugn tax measures based on Article 1 of Protocol 1 ECHR and other articles of the ECHR;
• the lines of defence hampering judicial activism in the tax arena;
• the concept of ‘emergency’ in tax policy;
• the effects of tax penalty classification and retrospectivity;
• the right to a fair trial in tax disputes; and
• the extent tax policy may hamper the right to privacy and other fundamental human rights.

In elaborating on the nexus between taxation and human rights, this book proves to be a vital contribution to a crucial element of the ongoing debate focusing on the tax-related jurisprudence of the ECtHR. With its practice-oriented tax policy rulebook drawn from the judgments of the ECtHR, tax practitioners and in-house counsel will approach any case with cognisance of its human rights implications and constitutional consequences.

Workshop: Legitimate Aims and Ulterior Purposes in International Human Rights Law

On 2 June 2023,  the Centre for Fundamental Rights at the Hertie School is hosting a workshop on the Legitimate Aims and Ulterior Purposes in International Human Rights Law. The workshop, co-organised by PluriCourts at the University of Oslo and the Academy for European Human Rights Protection at the University of Cologne, aims to explore this issue in light of recent global jurisprudential developments, in particular those of the European Court of Human Rights, and the pressing contemporary challenges to democracy and the rule of law. 

 

Here is a brief description of the call:

 

'International human rights law (‘IHRL’) requires that states respect their international commitments. Restrictions in human rights are generally not permitted if they do not have a legitimate aim. However, the question of how to distinguish legitimate from illegitimate aims has tended to stay in the background of human rights jurisprudence and theory until relatively recently. 

 

We invite paper submissions that analyse the demarcation of legitimate aims and/or ulterior purposes in contemporary IHRL. We welcome papers that employ normative, doctrinal, critical or social science methods. We also particularly welcome papers that employ comparative methods drawing on public or human rights law, and other fields of law (public or private) to analyse legitimate aims and/or ulterior purposes, as well as papers that draw on political and democratic theory. 

 

The workshop is open to both established and early-career scholars and practitioners, including advanced PhD students. It welcomes submissions from researchers of human rights law and fundamental rights as well as inter-disciplinary researchers, encompassing political philosophy, political science, sociology and anthropology.

Interested participants should provide an abstract in Word format of no more than 500 words. Together with their abstracts, in the same Word document, applicants should provide the following information: name, affiliation, the title of the proposed paper and an email address.

 

To submit an abstract, please send an email to fundamentalrights[at]hertie-school[dot]org by 15 February 2023 with the heading ‘Submission Legitimate Aims and Ulterior Purposes Workshop’. Read the full Call for Papers here. 

Speakers will be informed of the acceptance of their proposals by 1 March 2023 and will be required to submit a draft paper by 19 May 2022.' 

Happy New Year from the ECHR Blog

Dear readers of the ECHR Blog, let us start off by wishing all of you a happy and good new year! After a more than tumultuous year in which the Council of Europe lost its largest member state when it invaded another one, causing enormous human suffering and large-scale human rights violations, and the ECHR now only covers 46 state parties, the protective umbrella of the European Convention is much smaller than it was. Yet, at the same time, these enormous setbacks, have also put into sharp perspective how crucial human rights are and it has yielded a much-increased awareness of human rights protection not just as an afterthought in conflict but also as a preventive tool. We can only hope that the coming year will bring better news for the people who need it most.

Over the last year, this blog - with an expanded editorial team - has tried to track both the developments related to the ECHR within the Council of Europe and the Court and its judgments as well as events and publications in the academic, research and civil society spheres. This blog has once again proven to be a key point of reference for the ECHR 'community' with almost 200,000 pageviews and 79 blogposts last year. We are grateful to our readers, who also continue to provide us with input for the blog! We are also looking forward to the coming year, as we will mark the blog's 15th anniversary in a few months from now.

Kind wishes, the ECHR editorial team

Antoine Buyse, Kushtrim Istrefi and Matilda Rados