New Book: 'European Human Rights Grey Zones'

Andrew Forde (Irish Centre for Human Rights, University of Galway) has just published a new book with Cambridge University Press entitled European Human Rights Grey Zones: The Council of Europe and Areas of Conflict. The book explores the effectiveness of the Council of Europe's human rights protection mechanism in European areas of conflict. This is the abstract:

'Forde examines the effectiveness of the human rights system of the Council of Europe (CoE) in conflict-affected regions and advances a novel approach to understanding how the European Convention on Human Rights can better serve the 10+ million rights-holders living in so-called human rights 'grey zones'. Building on the premise that nowhere in Europe should be deprived of access to Europe's human rights architecture, Forde argues that areas of conflict give rise to a collective public order imperative on Member States to seek maximal effectiveness of the CoE human rights system. Despite Kosovo's sui generis status, much of the CoE's experience of engagement with Kosovo could inspire more proactive efforts in relation to other areas of conflict. This book advocates a judicious engagement of the CoE's unique assets and acquis in affected regions based on the collective responsibility of Member States and the normative will of the Secretary General.'

New Judges Elected

Last week, the Parliamentary Assembly of the Council of Europe (PACE), elected three new judges to the European Court of Human Rights, in respect of Ireland, Latvia, and Liechtenstein. 

In respect of Ireland, Úna Ní Raifeartaigh was elected. She is currently a judge of the Court of Appeal of Ireland as well as being an ad hoc/substitute judge for the European Court of Human Rights. Before these functions, she was a longtime practising barrister, with an emphasis on criminal law. She has also taught at Trinity College Dublin and has a researcher for the Law Reform Commission. She thus has a very broad knowledge of the law, including the ECHR, from a wide range of professional perspectives. She will succeed the current judge in respect of Ireland, President Síofra O’Leary, whose term as a judge will end within a few months.

In respect of Liechtenstein, Alain Chablais has been elected. Maybe somewhat curiously to outsiders, he is the current Government Agent of Switzerland (not Liechtenstein) before the European Court of Human Rights as well as before a number of UN treaty bodies. In itself not a novelty of course, as the judges in respect of Liechtenstein have been from other states before, Mr Chablais has Swiss and French nationality. Previously, he has been a judge at the Swiss Federal Administrative Court, worked for the Swiss Ministry of Foreign Affairs, and has for a full decade been a member of staff at the Directorate General of Legal Affairs and Human Rights of the Council of Europe, amongst others with the Venice Commission and the Secretariat of the Framework Convention for the Protection of National Minorities. More recently, as the  Swiss Government Agent, he has participated in the work of the CDDH, the Steering Committee for Human Rights, including presiding over its Committee of Experts on the System of the ECHR, as well as being involved in the negotiations around the European Union's accession to the ECHR. No stranger to Strasbourg thus!

And in respect of Latvia, Artūrs Kučs was elected. Currently, he is a judge of the Constitutional Court of the Republic of Latvia as well as an ad hoc judge of the European Court of Human Rights. He is also associate professor at the Faculty of Law of the University of Latvia, where he led its Human Rights Institute in the past, and in his academic capacity for many years he was the Latvian representative (national director) in the EMa programme, the European Master's in Human Rights and Democratisation. In addition, he has trained judges and has worked for the Ombudsman of Latvia. Finally, he is a Member of the Management Board of the Fundamental Rights Agency and an Alternate Member of the Venice Commission. Another well-versed new judge in the many professional shapes legal work can take as well as being very familiar with the ECHR system.

Judges are elected for terms of nine years. Congratulations to the newly elected ones!

Recording of Climate Cases Webinar

A recording of the webinar of 19 April 2024, 'Climate Change in Strasbourg: the recent cases at the European Court of Human Rights', co-organised by this ECHR Blog and the Netherlands Institute of Human Rights (SIM), is now available here for those who missed it or want to watch it again. A big thank you to all participants for their attendance and incisive questions and especially to our three expert speakers: Gerry Liston, Margaretha Wewerinke-Singh, and Ole Windahl Pedersen!

New Session of MOOC on ECHR Starts Again on 4 May

On  4 May 2024 Utrecht University's free Massive Open Online Course (MOOC) on the ECHR will start again! Registration is open now. To enroll, please go to the Coursera platform. 

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by my Utrecht University colleagues professor Antoine Buyse and professor Janneke Gerards. This is the description of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:

ECHR Blog Special Webinar: Climate Change in Strasbourg

On Friday 19 April  (15h00 to 16h30 CET), the ECHR Blog and the Netherlands Institute of Human Rights (SIM) are co-organising a special webinar entitled 'Climate Change in Strasbourg: the recent cases at the European Court of Human Rights'. 

Last week, we already gave our first impressions when the European Court of Human Rights issued its Grand Chamber decisions and judgment in three keenly awaited climate change cases. Two cases were declared inadmissible, but the Swiss Klimaseniorinnen won their case in two crucial respects: the Court found violations of their right to private life under article 8 ECHR and of access to court under Article 6 ECHR. 

The webinar will focus on these important, already historic rulings of the Court. Why did the Swiss case lead to a judgment finding violations of the ECHR and did the two others not reach the merits phase? What standards of protection and admissibility requirements has the Court set with regards to climate change? What should national courts and other authorities do to comply with the Court’s standards on climate change? What could be the impact of the Swiss judgment outside Europe? How does the judgment fit in wider trends of climate litigation. These are some of the questions that will be discussed by a panel of eminent academics and practitioners working on human rights and climate change.   

The speakers of the webinar include Margaretha Wewerinke-Singh, Associate Professor of Sustainability of Law at the University of Amsterdam; Ole Windahl Pedersen, Professor of Environmental Law at Aarhus University; and Gerry Liston, senior lawyer with the Global Legal Action Network in the Portuguese Youth Climate case. The webinar will be moderated by Antoine Buyse and Kushtrim Istrefi, editors of the ECHR Blog.

If you wish to join the webinar (which will be held on the MS Teams platform), please register here.

Date: Friday 19 April

Time: 15h00-16h30 CET

The Northern Ireland Amnesty Act under Scrutiny in Strasbourg

By Matilda Radoš*

On 17 January 2024, Ireland submitted a new inter-state application (no. 1859/24) against the United Kingdom before the European Court of Human Rights under Article 33 ECHR. The case concerns the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, adopted by the United Kingdom on 18 September 2023.

The objective of the act is to deal with the legacy of the violent conflict in Northern Ireland that took place between 1 January 1966 and 10 April 1998, known as ‘the Troubles’, which led to the deaths of over 3600 people and the torture of many others. The act provides inter alia for the establishment of ‘the Independent Commission for Reconciliation and Information Recovery’ (ICRIR). The ICRIR will have the power to grant conditional amnesties to perpetrators of certain offences related to the Troubles.

The UK pursued the enactment of the Act despite concerns expressed earlier by, among others, victims’ groups, the Council of Europe’s Committee of Ministers (see here) and the Commissioner for Human Rights (see here). The Irish Government has consistently condemned the Act because of its incompatibility with the UK’s obligations under the Convention (for an overview of the origins of the case, see this post authored by Daniel Holder and Andrew Forde). In a press release issued on 20 December 2023, the Tánaiste and Minister for Foreign Affairs of Ireland Micheál Martin stated: ‘The British Government enacted this legislation on 18 September 2023, shutting off any possibility of political resolution. We now find ourselves in a space where our only recourse is to pursue a legal path.’ 

Ireland contends that certain provisions (section 19 and 39) that provide for immunity from prosecution are contrary to the obligations under the ECHR, more specifically state obligations stemming from Articles 2 (right to life) and 3 (prohibition of torture or inhuman or degrading treatment). This short post concerns the permissibility of amnesties under these provisions.

The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023

The establishment of the Independent Commission for Reconciliation and Information Recovery (ICRIR) under the Act would replace the methods for criminal and civil investigations currently in place. According to Section 2 of the Act, the ICRIR is established inter alia to conduct investigations into crimes that were committed during the period of the Troubles and to determine whether to grant individuals an amnesty for criminal prosecutions for ‘serious or connected Troubles-related offences other than Troubles-related sexual offences’. Section 1(5)(b) of the Act provides that a Troubles-related offence is ‘serious’ if it consists of the following acts: murder, manslaughter, culpable homicide, other offences committed by causing the death of a person, or offences committed by causing the suffering of serious physical or mental harm. One of the most controversial provisions in the Act is Section 19 entitled ‘Immunity from prosecution’. This section stipulates that the ICRIR has the power to grant an individual immunity from criminal investigation and prosecution for serious or connected Troubles-related offences if the individual cooperates with the ICRIR (conditional amnesty). It follows from Section 39 of the Act that no criminal enforcement action can be taken against individuals who have been granted an amnesty under Section 19 of the Act. The key question this raises is whether Sections 19 and 39 of the Northern Ireland Troubles Legacy and Reconciliation act breach the procedural limbs of Articles 2 (the right to life) and 3 (prohibition of torture or inhuman or degrading treatment) of the Convention.

Amnesties and the ECHR

Several scholarly contributions of the last few years have focused on the issue of the compatibility of amnesties with the Convention (see here, here and here). Most of these argue that the Court’s position on the permissibility of amnesty laws under the Convention is not entirely clear. The Court has not (yet) conducted a direct judicial review of amnesty laws. However, the Court has developed a rich jurisprudence on the procedural obligations of States to investigate and prosecute violations of Articles 2 and 3, and in a few judgments it has made some general remarks on the legality of amnesties from criminal prosecution.

As is well-known, in relation to violations of both Articles 2 and 3 ECHR, the Court has determined that states have an obligation to conduct effective investigations into alleged violations (for instance in McCann and Others v. UK in relation to the right to life and Aksoy v. Turkey in relation to the prohibition of torture or inhuman or degrading treatment). In its judgment in the case of McKerr v UK, the Court held that an investigation can be considered effective if it is capable of resulting in the identification and punishment of those responsible for the violations.

In addition to this it seems that the Court may find the failure to prosecute violations of Articles 2 and 3 to constitute a violation of the Convention (see for instance Öneryildiz v. Turkey [2004] [para. 93] in relation to Article 2 ECHR and Gäfgen v. Germany [2010] [para. 119] in relation to Article 3 ECHR). However, the Court has not granted victims the right to demand prosecutions (see for instance Brecknell v. the UK in which the Court said that ‘there is no absolute right however to obtain a prosecution or conviction’ [para. 66]). Furthermore, as regards the punishment of those responsible for violations of Articles 2 and 3 ECHR, the Court held in Ali and Ayşe Duran v. Turkey: ‘While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life endangering offences and grave attacks on physical and moral integrity to go unpunished.’ (para. 61)

Next to this line of case law, in the few judgments in which the Court has considered the issue of amnesties, it seems that under certain circumstances the Court leaves the door open for amnesties. As regards alleged violations of the right to life under Article 2 ECHR, in its admissibility decision in Dujardin and Others v. France in [1991], the former European Commission of Human Rights held that:

‘The State is justified in adopting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public in having the right to life protected by law.’ (p. 244)

In later judgments, such as in the case of Tarbuk v. Croatia, the Court reiterated the Commission’s position adopted in the Dujardin case. This statement suggests that amnesty laws, even for violations of the right to life, may be permissible subject to the condition that they are necessary to achieve legitimate ends and as long as a fair balance is struck between the interests of the state and individual members of society.

As regards alleged violations of Article 3, the Court’s position on the permissibility of amnesties seems to be less flexible. In the case of Ould Dah v. France the Court considered amnesties to be generally incompatible with the Convention. However, the Court has not pronounced an absolute prohibition on amnesties for violations of Article 3 and some room for states to adopt amnesties seems to exist when amnesties are granted in the context of a reconciliation process. The Court held:

‘Admittedly, the possibility of a conflict arising between, on the one hand, the need to prosecute criminals and, on the other hand, a country’s determination to promote reconciliation in society cannot, generally speaking, be ruled out.’ (p. 17)

According to scholars such as Miles Jackson (see here) and Louise Mallinder (see here), the Courts’ position on amnesties for violations of the prohibition of torture or inhuman and degrading treatment and other human rights violations that can be considered as international crimes is stricter. In the case of Marguš v Croatia  in [2014], the Court held:

‘In the present case the applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights such as the intentional killing of civilians and inflicting grave bodily injury on a child, and the County Court’s reasoning referred to the applicant’s merits as a military officer. A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognized obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.’ (para. 139). (emphasis added)

Even though the language used by the Court in Marguš is less absolute compared to its pronouncements in Dujardin and Tarbuk, the Court seems to leave some degree of flexibility to states to enact amnesties even for the most grave human rights violations. However, it has narrowed the permissibility of amnesties by stating that amnesties for gross human rights violations may be allowed only in particular circumstances, such as a reconciliation process or compensation to the victims of the violation.

Domestic proceedings

Parallel to the current inter-state application, domestic proceedings in the UK have also been ongoing, on 28 February 2024, in a case filed by a number of relatives of victims of Trouble-era crimes, the High Court of Justice in Belfast ruled that Section 19 of the Act violates Articles 2 and 3 ECHR because it prevents the prosecution of grave breaches of fundamental rights and does not contribute to reconciliation in Northern Ireland. In the High Court’s words:

‘The immunity contemplated under the 2023 Act does not provide for any exceptions for grave breaches of fundamental rights including allegations of torture. If an applicant for immunity meets the criteria the ICRIR must grant immunity. The victims have no role or say in these decisions. Victims may be confronted with a situation where an applicant for immunity does so at the last minute, in circumstances where a recommendation for prosecution is imminent or inevitable. I accept that the provision of information as to the circumstances in which victims of the Troubles died or were seriously injured is clearly important and valuable. It is arguable that the provision of such information could contribute to reconciliation. However, there is no evidence that the granting of immunity under the 2023 Act will in any way contribute to reconciliation in Northern Ireland, indeed, the evidence is to the contrary.’ (para. 187)

In conducting a direct judicial review of the immunity provisions in the Act, the Belfast Court took into account the issues that the European Court of Human Rights will also have to engage with when reviewing the legality of the Act under the Convention.

Conclusion

Thus, in the current inter-state case, in scrutinizing the compatibility of the immunity provisions of Northern Ireland Amnesty Act the Court will have to determine, among other things, whether the Act prevents effective investigations into crimes committed during the Troubles-era, whether the amnesty is necessary to achieve legitimate aims, whether the amnesty contributes to reconciliation and/or whether the amnesty is accompanied by remedies for victims.

* Matilda Radoš is Lecturer and PhD Candidate in international human rights law at Utrecht University. She is assistant editor of the ECHR blog.

Danileţ v. Romania: A Plea for Judges' Freedom of Expression

by Dragoș Călin, Judge and  co-president of the Romanian Judges’ Forum Association

 

 

Introduction

In the case no.16915/21, Danileţ v. Romania, the European Court of Human Rights held on February 20, 2024, by a majority (four votes to three), that there had been a violation of Article 10 of the European Convention on Human Rights and the sanction imposed on the judge for Facebook posts concerning matters of public interest infringed his freedom of expression.

 

The case concerns the limits of freedom of expression in the situation of a judge who, at the time of the facts, held neither the position of president of any supreme court nor a member of a judicial council, nor the position of representative of a professional association. From this point of view, the ECtHR decision seems to bring some jurisprudential clarifications. We will present below the main lines of the Court's reasoning, aspects related to the situation of Romanian judges regarding the freedom of expression and the inadequate protection of opinions expressed by judges, individually, in relation to the proper functioning of justice, as well as the need to avoid the direct intimidation or silencing of judges.

 

Facts

At the relevant time, Cristi Danileţ was a judge at Cluj County Court and he was well known for actively taking part in debates and enjoyed a certain nationwide renown in Romania. In January 2019, he posted two messages on his publicly accessible Facebook page, which had roughly 50,000 followers, and for which, in May of that year, the Superior Council of Magistracy (SCM) imposed a disciplinary penalty on him, consisting in a 5% pay cut for two months and based its decision on Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors.

 

As to the first message, which was republished and commented on by numerous media followers, the SCM found that Cristi Danileţ had – unequivocally and before thousands of readers – cast doubt on the credibility of public institutions, insinuating that they were controlled by the political class and proposing as a solution that the army intervene to ensure constitutional democracy. It considered that Cristi Danileţ had impaired the honour and good reputation of the judiciary, and that he had breached his duty of restraint in a manner that had been able to tarnish the good reputation of the judiciary.

 

In his second message, Danileţ had posted on his Facebook page a hyperlink to an article in the press entitled “A prosecutor sounds the alarm. Living in Romania today represents a huge risk. The red line has been crossed when it comes to the judiciary” and had published a comment praising the courage of the prosecutor in question taking into account that he dared to speak openly about the release of dangerous inmates, about the catastrophic initiatives to amend the Justice laws on the way the judicial system was organised, and about the verbal attacks against judges. The SCM considered that the language used in Judge Danileţ’s published comment had overstepped the limits of decency and had been unworthy of a judge.

 

In May 2020, the High Court of Cassation and Justice dismissed Judge Danileţ’s appeal and upheld the SCM’s decision.

 

The Court’s Judgment

The European Court of Human Rights found that the domestic courts had failed to give due consideration to several important factors, in particular concerning the broader context in which the applicant’s statements had been made, his participation in a debate on matters of public interest, the question whether the value judgments expressed had been sufficiently based on facts and, lastly, the potentially chilling effect of the sanction. In addition, the existence of an attack on the dignity and honour of the profession of judge had not been sufficiently demonstrated.

 

According to the European Court, the domestic courts had not granted the applicant’s freedom of expression the weight and importance such a freedom was due in the light of the Court’s case-law, even though a means of communication had been used (namely a publicly accessible Facebook account) that might have raised legitimate questions with regard to judges’ compliance with their duty of restraint (para.82). Consequently, the Romanian courts had not given relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression (para.83).

 

Regarding the first message, the Court found that it contained criticism of the political influences to which certain institutions were allegedly subject, namely the police, the judiciary and the army. The applicant had referred to the constitutional provisions under which the army was subject to the will of the people and contemplated the risk of any form of political control over that institution. Through the use of rhetorical questions, he invited his readers to imagine the army acting against the will of the people, someday, under the pretext of protecting democracy. In his view, this was a mere detail behind which lay a more serious problem. Resituated in their proper context, the applicant’s statements amounted to value judgments to the effect that there would be a danger to constitutional democracy in the event that public institutions fell once more under political control. Those statements therefore concerned matters of public interest relating to the separation of powers and the need to preserve the independence of the institutions of a democratic State (para.68-71).

 

Regarding the second message, the Court considered that the applicant’s position clearly fell within the context of a debate on matters of public interest, as it concerned legislative reforms affecting the judicial system (para.72).

 

The Court took the view, concerning both the second and first messages, that any interference with the freedom to impart or receive information ought to have been subject to strict scrutiny, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State in such cases.

 

That being stated, the Court reasserted the principle that it could be expected from judges that they should show restraint in exercising their freedom of expression, as the authority and impartiality of the judiciary were likely to be called in question. However, the statements at issue were not clearly unlawful, defamatory, and hateful or calls to violence (para.79).

 

The Court attached significant weight to the fact that the national courts had chosen not to impose the least severe sanction on the applicant (which, at the relevant time, was a warning), which had undoubtedly a “chilling effect”, discouraging not only the applicant himself, but other judges as well, from taking part, in the future, in the public debate on matters concerning the separation of powers or the legislative reforms affecting the courts and, more generally, on matters pertaining to the independence of the judiciary (para.80).

 

The Court concluded that, in weighting up the competing interests at stake, the domestic courts had failed to give due consideration to several important factors, and had not provided relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression.

 

Judge Rădulețu expressed a concurring opinion, considering that, in the absence of case law establishing clear and predictable rules as to the extent of judges’ duty of discretion in this type of situation, in the presence of a subject of general interest and especially in the absence of a balancing of competing interests by the national courts (the first called upon to carry out this exercise), the protection of the applicant’s freedom of expression must prevail.

 

Judges Kucsko-Stadlmayer, Eicke and Bormann expressed a joint dissenting opinion. They emphasized that national authorities are in principle best placed to assess the impact of the language used in the particular context of their country and society and the decision to sanction the applicant fell within the general margin of appreciation by which the proportionality of an interference is measured.

 

The situation of Romanian judges regarding the freedom of expression

Romania has a legal and professional tradition of judicial silence, and judges were expected to absolutely refrain from manifesting any form of political beliefs. Judges are prohibited from any negative comments on the professional and moral integrity of their colleagues. Ideas or orientations that might suggest a connection to a party or to partisan structures must not be expressed on social media. Judges are also prohibited from supporting, promoting or evaluating in any manner campaigns, pages or posts by activists or groups, if this were to bring the judiciary into disrepute. The law is not sufficiently precise.

 

The successive amendments to the laws of judiciary in Romania have attracted the attention of the Venice Commission (see Opinion No. 924/2018, and Opinion No. 950/2019), and of the Group of States against corruption Group of States against corruption.

 

Since 2018, the Judicial Inspectorate (an autonomous entity that is part of the SCM), launched dozens of disciplinary proceedings against activist judges and prosecutors. All these disciplinary investigations were based on the provisions of Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors: „There are disciplinary offenses: the conduct that has a negative impact on the professional honor or probity or the prestige of justice, committed in the exercise or outside the exercise of the official competences”. It is possible to start the investigation on this ground if mass-media write something against a judge or if the spokesperson from Judicial Inspectorate finds an improper post on social media even if no one is making a complaint on this. There have even been some instances when Pthe resident of the SCM demanded the Judicial Inspectorate to start an investigation and that ame President was a member in the subsequent disciplinary Panel of the SCM in the case.

 

In its judgment of 11 May 2023 in Case C-817/21, Inspecția Judiciară, the Court of Justice of the European Union that the powers of the Judicial Inspectorate were used on several occasions for the purpose of political scrutiny of judicial activity. Examples included preventive suspension from office until the completion of disciplinary investigations against judges from the associations of judges and prosecutors who criticised regressive judicial reforms of the 2017-2019 period and/or who submitted requests for preliminary rulings to the Court of Justice of the European Union. Even after this European confirmed the political control of judicial activity in Romania, carried out through the Judicial Inspectorate, the SCM did not react.

 

In 2021, more than 500 judges and prosecutors signed an open letter addressed to the SCM and Minister of Justice, requesting to repeal Article 99(a) of the Law no.303/2004. The letter raised concerns about arbitrary interpretations of the law, because there are no minimum criteria, details or clarifications, in order to establish, in a transparent and justified manner, the conduct of magistrates which violate honor and professional probity. In spite of some minor reforms in the years since, there is no provision in the new laws on the judiciary to stop the harassment of ‘inconvenient’ judges and prosecutors.

 

Inadequate protection of opinions expressed by judges, individually, in relation to the proper functioning of justice

The Bangalore Principles of Judicial Conduct emphasize the right of every judge to free expression and opinion, to freedom of association, as well as to freedom of belief, while respecting the dignity of the judicial office, so that neither its independence nor impartiality is prejudiced. At the same time, judicial independence is a value that must be defended both from within, by legal professionals, and from without, by civil society, and when democracy and fundamental freedoms are at risk, the judge's duty of reserve becomes subsidiary to the duty of indignation.

 

The opinions expressed by judges in relation to the proper functioning of justice, a matter of public interest, are conventionally protected, even if they have political implications, as judges cannot be prevented from getting involved in the debate on these subjects. The fear of sanctions can have a dissuasive effect on judges to express their views on other public institutions or public policies. This chilling effect manifests itself to the detriment of society as a whole. As the Court has held, “even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter. Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate” (ECtHR, Baka v. Hungary, para.165).

 

The existence and activities of professional associations related to the field of justice were and are necessary to increase the efficiency, transparency and quality of the judiciary. Consequently, the presidents of professional associations of magistrates have not only the right, but also the obligation to formulate points of view on matters related to the functioning of justice. The Court’s case-law indeed protects the freedom of opinion related to the functioning of the judicial system, especially in the case of magistrates with high positions (for example, members of councils of the judiciary, presidents of supreme courts, general prosecutors, etc.) or those who represent associations as legally established professionals.

 

In Cristi Danilet’s case, domestic authorities should have taken account of his past capacity as a member of the Romanian SCM (in the period 2011-2016) and his subsequent permanent activity as an integrity whistleblower and expert commentator on the functioning of the judiciary. Disregarding these calls into question a legitimate and extremely necessary aspect: protecting the expressed opinions of judges when democracy and fundamental freedoms are at risk.

 

Conclusion

Of course, the judiciary should not be imagined as a silent body, in which only the heads of courts or prosecutors' offices or the representatives of judges and prosecutors constituted in professional associations can open their mouths, the others being condemned ab initio to a perpetual silence. A judge is a member of society and from this position, cannot be forced to live in a bubble, disconnected from social realities. In a former communist society, in which civic attitude is not yet developed, and the public opinion does not immediately react to slippages of the executive against democracy or the independence of the judiciary, judges and prosecutors should be allowed to express their opinion on these subjects as long as impartiality in the performance of their duties is not affected.

 

As Opinion No.3 of the Consultative Council of European Judges states, “judges should be allowed to take part in certain debates regarding the national legal policy. They must be able to be consulted and play an active role in the preparation of legislation regarding their status and, more generally, the functioning of the judicial system” (para. 34). Indeed, it is crucial that each magistrate, taken individually, can express opinions regarding the functioning of justice, at least in situations where democracy and fundamental freedoms are endangered.

 

The direct intimidation or silencing of judges could turn the judiciary into a giant with feet of clay, passive, and without words, represent the greatest danger related to the independent functioning of the judiciary. Countering these trends across Europe is crucial for democracy. The Court’s recent judgment in Danileţ v. Romania seems to be a good start in this regard.

 

Climate Cases Decided Today: Small Step or Huge Leap?

by Antoine Buyse and Kushtrim Istrefi

This morning, the European Court of Human Rights issued its Grand Chamber decisions and judgment in three keenly awaited climate change cases. Two cases were declared inadmissible, but the Swiss grandmothers (Klimaseniorinnen) won their case in two crucial respects: the Court found violations of their right to private life under article 8 ECHR and of access to court under Article 6 ECHR. Although the rejection of most cases and complaints is disappointing, yet was expected, probably much more important is the principled step that the Court has taken to for the first time explicitly acknowledge the fact that climate change can affect human rights. So depending on one's perspective this is a very small step or a huge leap forwards. This is our initial analysis of some key aspects of today's Grand Chamber pronouncements. No doubt the cases will yield food for thought and analysis as well as policy change for many years to come.

The Swiss Klimaseniorinnen

The case of elderly Swiss ladies, Verein Klimaseniorinnen Schweiz and others v Switzerland, was the only one of the three in which the Court issued a judgment and also includes a lot of the argumentation that was applied in the other two cases. 

In a nutshell, the Court found violations of the right to private life under Article 8 (16 votes against 1) and of the right to access to Court under Article 6 (unanimously) ECHR. But, importantly, this only applies to the legal person of the association of the Klimaseniorinnen, and not to the four individual elderly women, one of whom tragically passed away over two years ago, who were co-applicants in this case. The Grand Chamber found they had no locus standi by applying a very high threshold for victim status under the Convention. No doubt, this element of the case in itself, and the for many counter-intuitive finding that the association could be regarded as a victim, will be the basis for a lot of academic debate and analysis.

Different from other environmental harm?

Importantly, the Court crucially distinguishes climate change cases from cases of environmental harm across borders which it calls fundamentally different:

"415.  The Court’s existing case‑law in environmental matters concerns situations involving specific sources from which environmental harm emanates. Accordingly, those exposed to that particular harm can be localised and identified with a reasonable degree of certainty, and the existence of a causal link between an identifiable source of harm and the actual harmful effects on groups of individuals is generally determinable. Furthermore, the measures taken, or omitted, with a view to reducing the impugned harm emanating from a given source, whether at the regulatory level or in terms of implementation, can also be specifically identified. In short, there is a nexus between a source of harm and those affected by the harm, and the requisite mitigation measures may be identifiable and available to be applied at the source of the harm. "

Two margins of appreciation and positive obligations

What is really notable is that the Court explicitly distinguishes different margins of appreciation for states in relation to climate change. While there is a wide margin of appreciation in terms of how to tackle climate change (choice of policies etc.), the margin is reduced in terms of "the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect", because of the "nature and gravity of the threat" and the consensus among states to achieve carbon neutrality (para. 543). And in achieving a fair balance in terms of positive obligations under the Convention, "climate protection should carry considerable weight in the weighing-up of any competing considerations" (para. 542). These are really important and principled pronouncements by the Court today. 

As second key step is that the Court recognises for the first time that the ECHR entails positive obligations for states in the context of climate change, namely "to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change" (para. 545). More concretely this entails putting "in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention" (para. 546). And it includes archiving carbon neutrality within the next three decades (para. 548) in order to comply with Article 8!

In the specific case of Switzerland, it failed to comply with Article 8. As the Court concluded (para. 573), there were: 

"critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets. By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context."

Obligations under Article 8: similar to Article 2?

Although the Court found no violations under Article 2 in the present case, it must be noted that the standards developed with regards to the right to private life under Article 8 create very similar or even the same State obligations to combat climate change as if they would have been decided under Article 2. The Court mentioned this in a rather explicit way by noting that while it is:

“537: (...) appropriate to examine the applicant association’s complaint from the angle of Article 8 alone… in its case-law analysis below it will have regard to the principles developed also under Article 2, which to a very large extent are similar to those under Article 8 and which, when seen together, provide a useful basis for defining the overall approach to be applied in the climate-change context under both provisions” 

Indeed, the positive obligations developed under Article 8 relate to specific measures that State’s must take to reduce greenhouse gas (GHG) emissions. The Court found that the failure of the Swiss authorities’ to put in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations has led to a breach of Article 8 (para 573). It also noted that, “as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets .... By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.”

In our view, the nature of positive obligations set under Article 8 do not differ from the measures that would be required under Article 2 as both of them ultimately require States to take specific measures to reduce GHG emissions. 

It is important that the Court has also explicitly mentioned this connection between Article 8 and Article 2 obligations, not least because of domestic implications of this judgment. For example, in Urgenda, the Dutch courts found a violation of Article 2 ECHR with regards to State’s failure to sufficiently reduce GHG emissions. If the Strasbourg Court had made no connection between Articles 8 and 2, one could wonder whether Dutch courts misapplied the ECHR in the Urgenda case. But today's Grand Chamber judgment shows that it is less relevant on whether we use Article 8 or Article 2 since both create the same State obligations to sufficiently reduce GHG emissions. In this vein, the failure of Strasbourg Court to find a violation on Article 2 does not reduce ECHR obligations to combat climate change. Instead, by focusing on Article 8 rather than Article 2, the Court has opened an alternative, more creative way to address climate change obligations while avoiding the higher and more complex procedural and admissibility burdens that are normally triggered through Article 2.

No access to court

In the Grand Chamber's unanimous finding of a violation of Article 6 ECHR due to a lack of access to court, Strasbourg gives quite an open reprimand to the domestic courts in Switzerland:

"635.  The Court is not persuaded by the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit (see paragraphs 56‑59 above). This was not based on sufficient examination of the scientific evidence concerning climate change, which was already available at the relevant time, as well as the general acceptance that there is urgency as regards the existing and inevitable future impacts of climate change on various aspects of human rights (see paragraph 436 above; see also paragraph 337 above as regards the respondent Government’s acceptance that there was a climate emergency). Indeed, the existing evidence and the scientific findings on the urgency of addressing the adverse effects of climate change, including the grave risk of their inevitability and their irreversibility, suggest that there was a pressing need to ensure the legal protection of human rights as regards the authorities’ allegedly inadequate action to tackle climate change." [our emphasis]

The Grand Chamber then places this finding in the dual role for domestic courts in this context: both in implementing ECHR rights as well as in being key actors in climate change issues: 

"629. the Court considers it essential to emphasise the key role which domestic courts have played and will play in climate-change litigation, a fact reflected in the case‑law adopted to date in certain Council of Europe member States, highlighting the importance of access to justice in this field. Furthermore, given the principles of shared responsibility and subsidiarity, it falls primarily to national authorities, including the courts, to ensure that Convention obligations are observed."

Just like politicians cannot hide behind judges, judges cannot hide behind politicians either, the Court seems to say: it truly is a shared responsibility to address climate change, also from a human rights perspective.

What's next: implementation

So what should Switzerland now do to implement the judgment? Whereas the applicants had asked the Court to set specific emission reduction targets in line with he newest climate science insights, the Court deferred to give any concrete indications, and it is worth citing the Grand Chamber's consideration in full here:

"657. (...) having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area, the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment."

This in a way was also to be expected. The 'hot potato', so to speak, is put on the plate where it probably belongs, that of the state parties. All the more ironic in this situation as this is one of those European Court judgments that engages necessary action by all states. However, to the disappointing of many, the states will not be guided by specific actions demanded by Strasbourg, but the target (carbon neutrality within three decades) is clear and in line with scientific insights. Not judges but politicians will have to take action, after this strong judicial nudge.

There is thus, even if it may seem a small win to some, great innovation in the Klimaseniorinnen judgment, even if not on all fronts.

The former French mayor

Then the two other cases, which were dismissed in inadmissibility decisions by the Court: 

The case of the former French mayor of the coastal town of Grande Synthe, Carême v. France, was declared inadmissible ratione personae. The applicant complained under Articles 2 and 8 ECHR about insufficient mitigation measures being taken against flooding of coastal areas by France. As he both lodged a complaint in his own capacity and on behalf of his (former) municipality, the Court held - in line with existing case-law, that state authorities, including local ones, could not complain under the Convention. As regards his own personal situation, the applicant was no longer a mayor but had in the meantime been elected to the European Parliament and lives in Brussels, so outside France. Building on what it said in the Klimaseniorinnen case on victim status, the Grand Chamber held the following to reject the application:

"83. (...) the Court does not consider that for the purposes of any potentially relevant aspect of Article 8 – private life, family life or home – he can claim to have victim status under Article 34 of the Convention as regards the alleged risks linked to climate change threatening that municipality. This is true irrespective of the status he invoked, namely that of a citizen or former resident of that municipality. The same considerations apply as regards the applicant’s complaint under Article 2 of the Convention.

84.  Holding otherwise, and given the fact that almost anyone could have a legitimate reason to feel some form of anxiety linked to the risks of the adverse effects of climate change in the future, would make it difficult to delineate the actio popularis protection – not permitted in the Convention system – from situations where there is a pressing need to ensure an applicant’s individual protection from the harm which the effects of climate change may have on the enjoyment of their human rights."

The case of the Portuguese children

As regards the probably most publicised case of the three, the one of Portuguese children complaining against 33 state parties of the ECHR for causing dangers to their life and health, amongst others because of the increase of forest fires as a result of climate change (under Articles 2, 3, 8, and 14), Duarte Agostinho and Others v. Portugal and 32 Others, the Court rejected the application on two different grounds. Relating to the 32 states beyond Portugal about which the children and teenagers complained, the Court stuck to its line on extra-territoriality of jurisdiction and did not go beyond that for the special situation of climate change. It very specifically distinguished these type of climate change-related situations from the more traditional 'local' environmental harm across borders. Reiterating and summarising its current jurisprudence on extraterritorial obligations under the ECHR, the Court held that climate change cases are not of such a special nature to warrant a new extension of extraterritorial jurisdiction: 

"192.  First, States have ultimate control over public and private activities based on their territories that produce GHG emissions. In this connection, they have undertaken certain international-law commitments, notably those set out in the Paris Agreement, which they have developed in their domestic laws and policy documents as well as in their Nationally Determined Contributions (“NDC”) under the Paris Agreement. Moreover, as set out in Verein KlimaSeniorinnen Schweiz and Others (cited above, §§ 544-554), certain positive obligations arise under the Convention as regards climate change.

193.  Secondly, albeit complex and multi-layered, there is a certain causal relationship between public and private activities based on a State’s territories that produce GHG emissions and the adverse impact on the rights and well-being of people residing outside its borders and thus outside the remit of that State’s democratic process. Climate change is a global phenomenon, and each State bears its share of responsibility for the global challenges generated by climate change and has a role to play in finding appropriate solutions.

194.  Thirdly, the problem of climate change is of a truly existential nature for humankind, in a way that sets it apart from other cause-and-effect situations. More fossil fuels being extracted or burnt anywhere in the world, beyond what can be offset by natural carbon sinks (net zero), will inevitably lead to higher GHG concentrations in the atmosphere and therefore to worsening the effects of climate change globally.

195.  However, the Court finds that these considerations cannot in themselves serve as a basis for creating by way of judicial interpretation a novel ground for extraterritorial jurisdiction or as justification for expanding on the existing ones. It will now proceed to address the other arguments put forward by the applicants as a basis for justifying an extension of extraterritorial jurisdiction." 

With this the complaint against the whole group of states is declared inadmissible. The Court explicitly states it is not following the different conception of jurisdiction by the Inter-American Court of Human Rights or the United Nations Child's Rights Committee (para. 212).

And in respect of the then remaining complaint against Portugal only, the Court simply applied standing case-law on non-exhaustion of domestic remedies. Closely connected to this, the Court held that the victim stays is also not clear and decided not to further examine this.

Although the application was a legal gamble worth taking, the outcome of the Court's decision will not be surprising for ECHR experts or Court watchers. 

Conclusion, for now ...

What the judgment in the Klimaseniorinnen case will for sure do is open the doors for more climate change cases, both at the European Court of Human Rights, but much faster and much more extensively also in all ECHR state parties. In other words, many Urgenda-like cases are bound to follow at the national level across Europe. For bold domestic courts this could still relate to the right to life under Article 2 ECHR, but more firmly building on todays's judgment, the right to private life under Article 8 seems the most solid way, for now. Let us hope it will help to make a difference.

The video of the delivery of the judgment can be watched here and the Court has also issued a Q&A document on today's cases.