New ECHR Readings

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

* Francesca Tammone, ‘Challenging Externalization by Means of Article 4 ECHR: Towards New Avenues of Litigation for Victims of Human Trafficking?’, Netherlands International Law Review (2024):

 

‘The externalization of migration control undermines the protection of victims of trafficking in human beings. Pushbacks and pullbacks at sea, as well as simplified or accelerated identification procedures, exacerbate the risk of trafficking and retrafficking and prevent victims from accessing the protection to which they may be entitled in European States. In this scenario, the European Court of Human Rights can play a crucial role among international bodies and courts in ensuring effective remedies for victims in case of repatriation to their countries of origin and transit. This study examines the applicability of the prohibition of slavery, servitude and forced labour enshrined in Article 4 of the European Convention on Human Rights—whose scope now undisputedly includes trafficking in human beings—in the context of the externalization of migration control. It demonstrates that litigating unlawful refoulements under Article 4 ECHR might be very worthwhile to raise awareness of migration-related risks for victims, to strengthen the legal framework of positive obligations in trafficking cases, and to ascertain violations of anti-trafficking international obligations by European States.’

 

* Koen Lemmens, ‘Cross-border surrogacy and the European Convention on Human Rights: The Strasbourg Court caught between “fait accompli”, “ordre public”, and the best interest of the child’, Netherlands Quarterly of Human Rights (2024):

 

‘Surrogacy is a form of family creation that raises many medical, ethical, and legal questions. This article examines how the European Court of Human Rights (ECtHR) deals with the issue of cross-border surrogacy and its legal consequences in its recent case law. It will demonstrated that the Strasbourg Court has developed a nuanced case law that leaves it in the first place to the national authorities to deal with the complex issue of surrogacy, whereby it is nevertheless clear that further to the Strasbourg case law even if legislators rule out the possibility of surrogacy on their territory, they will have to find solutions to “‘regularise”’ the de facto situation of the child, taking into account its best interests.’

  

* Rebecca Lawrens, ‘A Positive Right to Rehabilitation? An Examination of the ‘Principle of Rehabilitation’ in the Caselaw of the European Court of Human Rights’, Human Rights Law Review (2024):

 

‘This article analyses the development and the role of the ‘principle of rehabilitation’ in the European Court of Human Rights’ caselaw on prisoner rights. It will be demonstrated that, outside of the context of whole-life sentences, the impact of the principle on the Court’s reasoning process has been relatively limited, despite increasing reference by the Court to the growing importance of the principle. Further, that the Court allowing the pursuit of rehabilitation to be used as justification for interferences with other Convention rights within its caselaw undermines the link made by the Court between rehabilitation and human dignity. Finally, it is argued that a conception of rehabilitation that is underpinned by human dignity requires recognition of a positive duty on states to provide access to appropriate rehabilitative treatment for all prisoners.’

 

* Tetiana A. Tsuvina and Alina Yu. Serhieieva, ‘Judicial Independence de jure and de facto: lessons for Ukraine from the case law of the ECtHR’ , International Comparative Jurisprudence (2024):

 

‘The principle of judicial independence is a fundamental tenet of the rule of law and fair trial standards. The European Court of Human Rights (ECtHR) identifies four criteria for evaluating judicial independence: (a) the manner of a judge’s appointment; (b) the duration of such an appointment; (c) safeguards against external influence; and (d) the appearance of independence. The ECtHR also distinguishes several dimensions of judicial independence, including independence vis-à-vis the executive, parliament, other courts, and parties, as well as independence from judicial councils. Nevertheless, despite the existence of shared European principles on judicial independence, certain countries, particularly those undergoing transitions, encounter challenges such as political interference, corruption, and insufficient safeguards against dismissal. This results in a discernible disjunction between de jure and de facto judicial independence. This article poses the following research questions: What are the main approaches and common challenges for judicial independence in European countries based on the latest case law of the ECtHR? What lessons can be learned by Ukraine, as an EU candidate, from this case law in order to mitigate the gap between de jure and de facto judicial independence?’

 

* Gergely Ferenc Lendvai and Gergely Gosztonyi, ‘“Access Denied” – Interpreting the Digital Divide by Examining the Right of Prisoners to Access the Internet in the Case Law of the European Court of Human Rights’, Baltic Journal of Law & Politics (2024):

 

‘The present paper aims to investigate prisoners’ rights to use and access the Internet, focusing on the jurisprudence of the European Court of Human Rights (ECtHR). The study’s principal objective is to assess the fundamental rights aspects of Internet access, particularly within the context of relevant EU legislation, and to interpret how the digital divide impacts prisoners. The study primarily relies on a thorough review of pertinent literature and legal materials, and it incorporates case studies from Estonia, Lithuania and Türkiye to contextualize the literature findings within specific legal jurisdictions. The research findings suggest that prisoners’ Internet access should be evaluated in accordance with fundamental rights, including Article 10 of the European Convention on Human Rights. Regarding the digital divide, the study concludes that limiting prisoners’ access to the Internet could exacerbate the already existing societal gap, potentially hindering their reintegration into society. The particular focus on the above three countries stems from the fact that as per the precedent of the ECtHR, only four countries are involved in cases concerning restriction of access to the Internet (Estonia, Lithuania, Türkiye and Russia); however, Russia ceased to be a party of the European Convention on Human Rights, so analyzing the future of the issue of Internet acces there is highly limited. Our research contributes significantly to the literature on the digital divide, particularly in terms of its legal implications. The study’s comprehensive approach, which integrates both theoretical and practical aspects, is beneficial for domestic legal professionals and researchers engaged in interdisciplinary investigations of EU law and fundamental rights.’

 

* Ivana Jelić and Etienne Fritz, ‘The ‘Living Instrument’ at the Service of Climate Action: The ECtHR Long-Standing Doctrine Confronted to the Climate Emergency’, Journal of Environmental Law (2024):

 

‘The evolving landscape of climate change litigation within human rights frameworks presents a complex challenge for courts worldwide. Recent landmark decisions by international court and treaty bodies have expanded the jurisdiction of human rights courts to address climate-related disputes. However, the most recent case law of the European Court of Human Rights (ECtHR) emphasises the delicate balance between recognising the urgency of climate action and upholding the integrity of a regional human rights system. This article explores the ECtHR’s use of the living instrument doctrine in response to climate change-related legal claims. It submits that climate change cases highlight the circumscribed role of the European Convention on Human Rights (ECHR or the Convention) in dealing with the climate emergency and reveal the tension between addressing climate change impacts and maintaining the functioning of the European human rights system.’

New 'ECHR/EU' Page on the Court's Knowledge-Sharing Platform

Last week the European Court of Human Rights launched a new 'ECHR/EU' page' on its Knowledge-Sharing Platform (ECHR-KS). On the platform, up-to-date data and analyses of developments in the Court's case-law through specific Convention Articles/Transversal Themes are shared. The new page was launched on the occasion of the seminar 'The articulation between the Convention and EU Law: past, present and future'. The new page contains a comprehensive guide on how the ECtHR addresses EU law in its case-law. It brings together case-law from the ECtHR and the CJEU.

New Issue ECHR Law Review

The second issue of the year of the ECHR Law Review has just been published (Vol. 5, issue 2). The issue contains one editorial, three guest editorials, two research articles and four book reviews. The guest editorials are devoted to the relationship between the ECHR and the ICCPR and the ECtHR and the United Nations Human Rights Committee. The research articles deal with the proposed right of psychological continuity under consideration by the Council of Europe and the UN HRC, and the right of access to reliable information under Article 10 ECHR.

This is the table of contents:

* Vassilis P Tzevelekos, 'On Mastic Trees, the echr, and the iccpr' (editorial)

* Anja Seibert-Fohr, 'The European Court of Human Rights and the Human Rights Committee: Two Actors with a Common Mission' (guest editorial)

* Yuval Shany, 'Catching Up: The European Court of Human Rights Approximates its Approach to Extraterritorial Jurisdiction Over Digital Surveillance to That of the Human Rights Committee' (guest editorial)

* Vasilka Sancin, 'The ECHR and the ICCPR: A Human Rights-Based Approach to the Protection of the Environment and the Climate System' (guest editorial)

* Sjors Ligthart, 'Towards a Human Right to Psychological Continuity? Reflections on the Rights to Personal Identity, Self-Determination, and Personal Integrity' (research article)

* Katie Pentney, 'The Right of Access to ‘Reliable’ Information Under Article 10 echr: From Meagre Beginnings to New Frontiers' (research article)

* Nikos Vogiatzis, 'Good Administration and the Council of Europe: Law, Principles, and Effectiveness, edited by Ulrich Stelkens and Agnė Andrijauskaitė' (book review)

* Spyridoula Katsoni, 'Responsive Human Rights: Vulnerability, Ill-Treatment and the ECtHR, written by Corina Heri' (book review)

* Janna Wessels, 'The Treatment of Immigrants in the European Court of Human Rights – Moving Beyond Criminalisation, written by Amanda Spalding' (book review)

* Christos Tsevas, 'The European Convention of Human Rights Regime: Reform of Immigration and Minority Policies From Afar, written by Dia Anagnostou' (book review)

Book Launch: The ECtHR and the Norm Against Torture

On Thursday 20 June (12:00-14:00 CET), the University of Amsterdam is organizing a book launch of the book 'Between Forbearance and Audacity: The European Court of Human Rights and the Norm against Torture', authored by Ezgi Yildiz (California State University, Long Beach). The book was published with Cambridge University Press in November last year. This is the abstract:

'When international courts are given sweeping powers, why would they ever refuse to use them? The book explains how and when courts employ strategies for institutional survival and resilience: forbearance and audacity, which help them adjust their sovereignty costs to pre-empt and mitigate backlash and political pushback. By systematically analysing almost 2,300 judgements from the European Court of Human Rights from 1967–2016, Ezgi Yildiz traces how these strategies shaped the norm against torture and inhumane or degrading treatment. With expert interviews and a nuanced combination of social science and legal methods, Yildiz innovatively demonstrates what the norm entails, and when and how its contents changed over time. Exploring issues central to public international law and international relations, this interdisciplinary study makes a timely intervention in the debate on international courts, international norms, and legal change.'

You can register here for the book launch. 

New ECHR Readings

Please find below a new selection of recent writings, articles and other, about the European Convention on Human Rights and its Court:

* Fleur van Leeuwen, ‘Epistemic Blind Spots, Misconceptions and Stereotypes: The Home Birth Jurisprudence of the European Court of Human Rights’, European Journal of International Law (2024):

 

‘This article offers a critical feminist reading of the home birth jurisprudence of the European Court of Human Rights. The aim is to shed light on the gender sensitivity of the Court in its legal reasoning and knowledge production. Since its first decision on the permissibility of a blanket de facto home birth ban in the case of Ternovszky v. Hungary in 2010, the Court has given five judgments on the matter, including a Grand Chamber decision in the case of Dubska and Krejzova v. Czech Republic. The author finds that the Court applies an overtly restrictive obstetric narrative of childbirth without situating its controversial epistemic basis. In doing so, the Court reinforces a rationale that is linked to loss of agency and disempowerment of persons in childbirth and reproduces harmful stereotypes. The article highlights bias in knowledge formation and (re)production at the Court in addressing cases of home birth. The findings in this article add to feminist inquiries of international human rights adjudication, specifically in regard to knowledge formation, knowledge production and stereotyping as well as to literature on the Court’s gender sensitivity.’

* Kumush Suyunova, ‘Human Rights Restrictions Prompted by the COVID-19 Pandemic: Uncertainties and Differences in the Practice of ECHR Parties’, Yearbook of International Disaster Law (2022).

 

The newest edition of the European Yearbook on Human Rights (2023, published in 2024), edited by Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak and Gerd Oberleitner, ialso includes number of ECHR-related contributions:

 

* Irene Sacchetti, ‘Planetary Justice, Human Rights and the ECHR: Advancing Alternative Onto-Epistemologies to Face Climate-Related Challenges’ (Intersentia 2024):

 

‘Injustices driven by climate change as a result of human ecological destructive activities have become of a planetary level, impacting on the rights of present and future generations, humans and non-humans. The analysis of human rights law through the lens of planetary justice, a conceptual framework which demands an expanded vision of justice beyond borders, across generations, and for non-humans, reiterates the inability of existing human rights law to deal with the intertemporal and interspecies dimensions of climatic harms. This contribution evaluates developments in the context of the Council of Europe (CoE), including the filing of the first climate cases before the European Court of Human Rights, and the push for the recognition of the right to a healthy environment. In doing so, it argues that, despite these steps forward, human rights law remains inefficient to address intergenerational dimensions of justice in the context of climate change . As an attempt to overcome intrinsic obstacles of human rights law deriving from its Western orientation, the contribution explores the potential of informing the interpretation of human rights norms with alternative onto-epistemologies, to ultimately pollinate human rights with alternative ways of thinking. This may provide a way to navigate the unprecedented challenges posed, by climate change, to the human rights legal framework.’

 

* Tomasz Sroka, ‘The Positive Obligations of States to Protect the Climate or the Environment as Part of the Protection of Human Life and Health under the European Convention on Human Rights’ (Intersentia 2024):

 

‘The purpose of this contribution is to analyse whether and how the protection of a clean environment or the climate can be realised through the positive obligations of states to protect human life and health that can be derived from Articles 2 and 8 of the European Convention on Human Rights (ECHR). The contribution includes an attempt to reconstruct the rights to respect, protect and fulfil human rights in environmental matters, as well as the scope of states’ obligations in the field of adaptation and mitigation of climate and environmental risks, as a precondition for the adequate and sufficient protection of human life and health. The thesis of the contribution is that the concretisation of states’ positive obligations within the above scope requires taking into account both the general principles of interpreting obligations to protect human life and health in the context of environmental hazards, and the specific criteria for determining what specific actions, in specific factual circumstances, the state is obliged to take in order to fulfil its obligations under Articles 2 and 8 ECHR. The contribution also presents a catalogue of the most important interpretation principles and specific criteria of the concretisation of states’ positive obligations.’

 

* Clara Zimmermann, ‘Is the European Convention on Human Rights Equipped to Tackle the Plastic Crisis in the Mediterranean Sea?’ (Intersentia 2024):

 

‘Plastic pollution constitutes a complex and severe problem of global scale. As plastic debris accumulates in nature, it increasingly finds its way back to humans through the food chain, the water and the air, with unknown consequences for human health, as well as for terrestrial and marine ecosystems. Additionally, it contributes significantly to the progressive deterioration of the planetary resources, affecting the enjoyment of human rights. The interdependence of human rights and environmental protection is largely recognised by international, regional and national legislation and case law. However, the relation between the human rights legal regime and the environmental legal regime is not straightforward on a dogmatic level. This contribution explores this connection with regard to the European Convention on Human Rights (ECHR), in relation to marine plastic pollution of the Mediterranean Sea.

To this end, the contribution summarises the state of the current academic debate, and the case law of the European Court of Human Rights, on the environmental dimension of recognised human rights, the procedural environmental human rights, and the human right to a healthy environment , with regard to the ECHR. Drawing on scientific assessments of the impacts of plastic pollution on marine ecosystems and humans, as well as on evolutions in international human rights law, the contribution explores arguments in favour of a state duty to protect against environmental harm caused by plastic pollution , under the ECHR, as well as conceptual challenges for the integration of environmental protection within the existing, intrinsically anthropocentric European human rights framework. Bridging environmental law and human rights law, the contribution further proposes a substantive content of a human right to a healthy environment, in respect of healthy oceans, under the European human rights regime, following the concept of ‘good environmental status’ rooted in the EU Marine Strategy Framework Directive.’

 

* Annick Pijnenburg, ‘Ukraine and the Netherlands v. Russia: Taking Stock of the Latest Developments in the Case Law of the European Court of Human Rights on Extraterritorial Jurisdiction’ (Intersentia 2024):

 

‘On 25 January 2023, the European Court of Human Rights (ECtHR, Court) issued its admissibility decision in Ukraine and the Netherlands v. Russia . This inter-state case concerns events in the Donbass area of eastern Ukraine, which began in the spring of 2014, including the downing of flight MH17. It is a landmark decision for many reasons, including the Court's approach to extraterritorial jurisdiction . Indeed, the Court used this case as an opportunity to clarify its general principles regarding jurisdiction, and it is likely to become the leading case on extraterritorial jurisdiction for years to come. More specifically, when formulating the general principles on jurisdiction, in Ukraine and the Netherlands v. Russia, the Court takes into account recent developments in its case law. Accordingly, this contribution examines to what extent the admissibility decision in Ukraine and the Netherlands v. Russia succeeds in incorporating recent developments in the ECtHR's case law into a coherent framework on jurisdiction. It first briefly recalls the main trends in the ECtHR's case law, across landmark cases such as Banković and Al-Skeini, before examining recent relevant ECtHR case law on extraterritorial jurisdiction. The contribution then discusses in detail the Court's approach to jurisdiction in Ukraine and the Netherlands v Russia . It thus shows that Ukraine and the Netherlands v. Russia can be seen as an ‘update’ of the general principles in Al-Skeini. It also confirms that, overall, the Court's case law continues to move in the direction of a more expansive and granular understanding of jurisdiction.’

 

* Lorenzo Acconciamessa, ‘The Case Law of the ECtHR in 2022: Strasbourg in the ‘Age’ of Protocol No. 15’ (Intersentia 2024):

 

‘This contribution analyses the developments in the case law of the European Court of Human Rights in 2022. This is the first year aft er Protocol No. 15, which, inter alia, introduced an express reference to the principle of subsidiarity and the doctrine of margin of appreciation into the Preamble of the European Convention on Human Rights, entered into force. Therefore, although the increased relevance of subsidiarity and margin of appreciation in the Court's approach to the interpretation and application of the Convention is not a new trend, it seems that it can provide an appropriate lens through which the relevant case law developments should be assessed. In light of the above, the contribution examines (some of) the relevant ‘key cases’ decided by the Court in 2022, and tries to highlight the relevance of the above-mentioned principle and doctrine in the identification of the scope and content of the obligations imposed on the domestic authorities by the Convention, as well as in the determination of the nature and scope of the Court's review over compliance with such obligations.’

Call for Papers: Critical Approaches to European Human Rights Law

On 17 January 2025, Esra Demir-Gürsel (Hertie School), Corina Heri (University of Zürich) and Jens Theilen (Helmut Schmidt University) are organizing a workshop on Critical Approaches to European Human Rights Law, and a Call for Papers for the workshop has just been launched. The aim of the workshop is to critically reflect on the ECHR and the ECtHR. The workshop will be held at the Hertie School Centre for Fundamental Rights in Berlin. This is the description of the Call for Papers:

'With this workshop, we aim to provide a forum for critical reflection on the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR). The practical relevance of human rights language has continued unabated for several decades now. Alongside the rise of human rights, trenchant critiques have been offered. These have foregrounded, for example, the coloniality of human rights, their role in cementing rather than challenging the status quo, and the limitations of who gets to speak in the name of human rights (Venthan Ananthavinayagan & Theilen 2024; see e.g. Mutua 2001; Kapur 2002; Baxi 2008; Marks 2011; D’Souza 2018). 

While critical accounts of human rights often acknowledge their use for emancipatory aims by social movements or community activism, they particularly highlight their limits in institutionalised and judicialised settings (O’Connell 2018; McNeilly 2019). The ECtHR could be considered a paradigmatic example of strongly judicialised human rights. Nonetheless, critical accounts that focus specifically on European human rights law have been scarce. Despite long-standing debates about method and different perspectives (Dembour 2006; Gonzalez Salzberg & Hodson 2020; Gerards, Erken & Loven 2023), most scholarship on the ECHR remains doctrinal or, increasingly, quantitative. Rather than seeing European contributions to human rights as ambivalent (Çalı 2023), large parts of scholarship continue to depart from the unspoken assumption that European human rights law constitutes a fundamentally benign project. 

Meanwhile, historically oriented scholarship on the ECHR and ECtHR has laid bare their foundational entanglements with European conservatism, colonialism, and national sovereignty (Duranti 2017; Reynolds 2017; Demir-Gürsel 2021). Strong critical traditions have also developed with a view to challenging the ECtHR’s approach to particular topics such as gender and sexuality (Theilen 2018; Gonzalez Salzberg 2019; Kapur 2020; O’Hara 2021), migration (Dembour 2015; de Vries & Spijkerboer 2021), secularism and religiosity (Danchin 2011; Demir-Gürsel 2013; Kapur 2020), or carcerality (Lavrysen & Mavronicola 2020; Pinto 2023; Tapia Tapia 2023). However, the implications of these critical accounts for how we approach European human rights law as a whole remain relatively underexplored. With some exceptions, even many critical accounts do not take the step from critique of the ECtHR’s case-law to critique of the ECtHR itself and of European human rights law.

We would like to push this boundary by further developing critical approaches to European human rights law as a whole. Taking the various critical traditions on particular human rights themes as a starting point, we aim to broaden the conversation and consider their implications for how we think about the ECHR and the ECtHR more generally. How might a Marxist critique of courts, a queer critique of rights, or a decolonial critique of the notion of “Europe” shift our understanding of the European project of human rights? 

To this end, we also welcome contributions that deconstruct and challenge dominant framings (Butler 2016) of the ECHR and the ECtHR in order to shake up assumptions about their role for emancipatory politics. How does scholarship frame the ECHR and the ECtHR? How can we challenge the framings of existing scholarship? Framings to critically analyse might include conceiving of the ECtHR as a successful court (particularly in comparison to human rights courts in other regions), as an agent of progress, or as a strategic actor focussed on institutional continuity. They might involve common tropes like legitimacy management or incrementalist change. How are such framings of the ECtHR normalised and naturalised within scholarship, what role does emotional attachment to human rights play in upholding them, and what are their politics? 

Building on these discussions, we are also interested in debating what comes after critique – or indeed “after rights” (Sokhi-Bulley 2024; Odysseos 2024) – specifically in the context of European human rights law with its high measure of institutionalisation and judicialisation. What insights can we gain from an engagement with notions like rights redemptionism (Golder 2014) and cruel optimism (Berlant 2011)? How should we engage with the dangers of both false necessity and false contingency (Marks 2009) in the context of European human rights law? 

In brief, we would like to debate the direction(s) that critical scholarship on the ECHR and the ECtHR could or should take. We hope that the workshop will serve to inaugurate a loose research network for thinking critically about European human rights law.'

The deadline for abstract submissions is 8 July 2024. 

Conference on the Implementation of ECtHR Judgments

On 19 June 2024, the European Implementation Network (EIN) will hold a conference entitled 'Safeguarding the Rule of Law: Implementing ECtHR Judgments for Lasting Impact' as part of its project on 'Promoting the Rule of Law in Europe through the Implementation of Judgments of the ECtHR Concerning Independence and Impartiality of the Judiciary'. The conference will be organized in the Hague in the Netherlands. The aim of the conference is to empower civil society and practitioners across Europe to promote rule of law reforms by sharing knowledge about the implementation of judgments of the ECtHR.

The project aims to promote the independence and impartiality of the judiciary in Europe, through the implementation of judgments of the European Court of Human Rights on this topic. More information about the project can be found here. 

Court and Academia Dialogue

The University of Strasbourg's Law Faculty is organising its fourth annual colloquium between academics and judges of the European Court of Human Rights. The French-language hybrid event, entitled 'Dialogue entre la Cour européenne des droits de l’homme et la Doctrine', takes place on Friday 14 June from 13h45 to 18h00. It is organised by  Florence Benoit-Rohmer, Ledi Bianku and Marko Bosnjak. Topics to be discussed include Protocol 16, the right to strike, the rule of law and judicial independence. The full programme can be found here. For registration, please go here.

Webinar on ECtHR Climate Change Cases

On Friday 31 May (13:00-14:00 CET) the University of Göttingen is organizing a webinar entitled 'Climate Change and Human Rights: Exploring the ECHR’s KlimaSeniorinnen and Duarte Agostinho cases'. In the webinar, Corina Heri (Postdoctoral Researcher at the University of Zurich) and Kata Dosza (Senior Associate Researcher and Adjunct Professor at the Brussels School of Governance) will be discussing the ECtHR's decisions in the cases of Duarte Agostinho and KlimaSeniorinnen.  The webinar is organized for students and academics interested in climate change and human rights, legal professionals, scholars, climate activists and NGO representatives, policymakers and governments officials, and anyone else interested in climate litigation and human rights. 

The webinar will cover the following topics:

- The legal frameworks and arguments in the Duarte Agostinho and KlimaSeniorinnen

cases.

- The ECHR's reasoning behind its decisions and their broader implications.

- Comparative analysis with other significant climate litigation cases.

- The evolving role of international human rights frameworks in addressing global

environmental challenges.

You can register here.

New President and Other Changes at the Court

Last week, the European Court of Human Rights announced a number of position changes in its internal organisation. Most pre-eminently, the Court elected its new President: Marko Bošnjak, the Court's judge in respect of Slovenia. Since 2022, he has been a vice-President of the Court and his term as a judge started in 2016, meaning it will end in 2025. His term as a President will thus be relatively short, following a pattern of the Court's Presidents of the last years - showing what a different type of institution the Court has become compared its early decades when Presidents served for many years on end in a parttime Court with much fewer cases. Judge Bošnjak succeeds the Court's current President Síofra O’Leary on 2 July 2024.

The election led to other shifts: Arnfinn Bårdsen, the judge in respect of  Norway, has been elected as Vice-President. And Ivana Jelić, the judge in respect of Montenegro, has been elected as new Section President. They will also take up their duties on 2 July. 

Good luck to all in their new positions! 

75 Years Council of Europe and Civil Society

In the week in which the Council of Europe celebrates its 75th anniversary (founded on 5 May 1949) - a full and bilingual timeline is available here - two civil society initiatives were undertaken:

The first is the presentation to states of the 'Civil Society Evaluation of the Progress of Implementation of the Reykjavík Summit Commitments by the Council of Europe and Its Member States' one year after the Reykjavik Summit'. This document, compiled under the auspices of CURE (Campaign to Uphold Rights in Europe) is the outcome of a process (in which the founder of this blog also participated) in which both the steps taken so far by states to implement the Reykjavik Declaration were compiled as well as the steps that still need to be taken were identified. In terms of the issue of implementation of judgments of the Court, the document acknowledges some important progress on technical, budgetary and procedural matters, but simultaneously urges states not to lose sight of the core of the matter: 'ensuring a stronger political follow-up to cases of non-implementation' by the Committee of Ministers and CoE institutions.

Secondly, a group of over 400 civil society organisations have joined forces to call upon Council of Europe to add a protocol to the ECHR with a right to a clean, healthy, and sustainable environment, following upon a report adopted by PACE earlier last month. More organisations can join the call here.

New Special Issue ECHR Law Review

The first issue of the year of the ECHR Law Review has just been published (Vol. 5, Issue 1). This time it is a special issue entitled 'The ‘Special’ Relationship between the United Kingdom and the European Convention of Human Rights'. The special issue focuses specifically on the question of what the consequences would be if the UK decides to withdraw from the ECHR. The issue contains one editorial note and nine research articles. This is the table of contents:

* Kanstantsin Dzehtsiarou, 'The United Kingdom and the European Convention on Human Rights: Together Until the End?'

* Merris Amos, 'Reality Amidst Rhetoric: Implementation of ECtHR Judgments in the UK'

* Ed Bates, 'UK Withdrawal From the echr (‘BrECHRit’): From Taboo to Tenable?'

* Frederick Cowell, 'Locking in Human Rights: An Exploration of the Barriers to ECHR Withdrawal'

* Lewis Graham, 'Boldness, Caution, Avoidance: Recent Cases Against the UK Before the European Court of Human Rights'

* Paul Johnson, 'UK Withdrawal From the European Convention on Human Rights: A Disaster for lGBT People'

* Natasa Mavronicola, 'Facilitating (Further) Inhumanity: On the Prospect of Losing Article 3 echr, a Vital Guarantee for the Under-Protected'

* Valsamis Mitsilegas and Elspeth Guild, 'The UK and the ECHR After Brexit: The Challenge of Immigration Control'

* Patricia Popelier, 'What’s Cooking? General Measures in the Case Law of the European Court of Human Rights'

* Stuart Wallace, 'Military Operations and Withdrawal From the European Convention on Human Rights'

Seminar on Procedural Costs and the ECtHR

On Friday 31 May from 12:00-13:15, the Faculty of Law of Lund University is organizing a seminar entitled 'The Costs Policy of the European Court of Human Rights: From Judicialisation to Judicial Restraint'. In the seminar, Ezgi Özlü (Postdoctoral researcher at the Luxembourg Center of European Law of the University of Luxembourg) will be presenting her PhD on the Costs Policy of the European Court of Human Rights. This is a short description of the seminar:

'This seminar will examine how the policy of costs at the European Court of Human Rights affects the nature of the cases brought before it. The main focus is on legal aid and the reimbursement of costs and expenses mechanisms. Eminent for the protection and promotion of human rights in Europe, both of these mechanisms have been developed in parallel with the gradual inclusion of the individual to the proceedings. Through the judicialisation process, with the broad use of the ‘equity’ principle, the Court has adopted a flexible approach. Nevertheless, managerialism and self-restraint have weakened this policy. The application of a single scale for legal aid, formalist assessment of reimbursement criteria, automatisation in decision-making, and dependence on member States demonstrate how the current costs policy limits the scope of individual application. This restriction, however, also limits the powers of the Court.'

You can participate via Zoom: https://lu-se.zoom.us/j/64236572774

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.