Friday, 20 May 2022

New ECHR Readings

Please find below a new batch of academic readings from the last few months on the European Convention on Human Rights, the European Court of Human Rights and its case-law:

* Paul Gragl, ‘Kant and Strasbourg on Mandatory Vaccinations’, European Convention on Human Rights Law Review 

‘Mandatory vaccination raises important questions of human rights, especially if moral norms are given effect in legal provisions. I argue – assuming the safety and efficacy of vaccines – that we are under a moral obligation to vaccinate. Although Kant himself was hostile towards vaccinations, his Categorical Imperative exhorts us to respect the autonomy and dignity of others, and if these ‘others’ are the most vulnerable members of society who cannot be vaccinated for medical reasons, we can only protect them by vaccinating ourselves. The ECtHR (implicitly) follows this reasoning in its case law, particularly in its most recent relevant decision, in Vavřička, in which it maintained that even though mandatory vaccination interferes with certain Convention rights, this can be justified in terms of social solidarity and the weighing of interests. We consequently see that in this context, the ECHR system is very much in line with Kant’s notion of morality.’

* Liv N. Henningsen, ‘The Emerging Anti-Stereotyping Principle under Article 14 ECHR’, European Convention on Human Rights Law Review
‘Anti-stereotyping as a legal principle is emerging as a transformative device in European human rights law. In this article, the anti-stereotyping principle in the case law of the European Court of Human Rights (ECtHR) is analysed and discussed. The article employs a multidimensional approach to discrimination and theorises a transformative dimension in relation to the stereotyping cases. First, the early cases on stereotyping are analysed in relation to different theoretical concepts. Thereafter, the Morais case is analysed and discussed in relation to the broader case law. It is argued that the anti-stereotyping principle is instituted more authoritatively in this case but requires further theorisation. Moreover, the comparator assessment is less significant in relation to the anti-stereotyping principle. Finally, it is argued that the ECtHR should be more explicit about intersectionality in its discrimination assessments and avoid essentialism. Aspects of case law are critiqued in this respect.’

* Wei Gao, ‘The ECHR in action: its applicability and relevance for arbitration’, International Journal of Human Rights 

‘Right to fair trial under Article 6.1 of the European Convention on Human Rights has significant bearing on arbitration. Under the jurisprudence of the European Court of Human Rights, an arbitral tribunal is a ‘tribunal’ within the meaning of Article 6.1. The rights recognised by Article 6.1 are subject to partial or full waivers in the context of arbitration, depending on its nature being voluntary or mandatory. To satisfy their Convention obligations, contracting States must exercise effective supervisory jurisdiction in arbitration matters. This may be in conflict with the practice in some contracting States of allowing private parties to contract out the rights to seek the setting aside of arbitral awards or enforce awards that have already been set aside. A survey of all Convention cases between 1955 and 2021 in this regard discloses an overall picture of how the Convention applies to arbitration matters.’

Sarah Trotter, ‘Hope’s Relations: A Theory of the ‘Right to Hope’ in European Human Rights Law’, Human Rights Law Review, Vol. 22, Issue 2 (2022)

‘In recent years, the notion of a ‘right to hope’ has emerged in the jurisprudence of the European Court of Human Rights. This article offers an account of how this right has been constructed and of how hope is conceptualised in European human rights law. It examines the origins of the ‘right to hope’, the meaning of hope in this context and the relationship that is depicted between hope and dignity. It argues that hope is conceived of here as relational and that one way of thinking about the right to hope in this sense is as a right to recognition. This has two dimensions: one involving the recognition of the individual by others and another involving the recognition of the individual in and through law. The latter implies a certain relationship of dependency between the individual and European human rights law, with hope itself coming to be constructed as an individual responsibility.’

* Kerstin Bree Carlson and Jacob Livingston Slosser, ‘When Religion Speaks: Denmark’s Face Covering Ban and European Human Rights Law’, Nordic Journal of Human Rights, Vol. 39, 2021, Issue 4 (2022)

‘This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.’

Thursday, 19 May 2022

Kosovo Applies for Council of Europe Membership

Last week, on 12 May 2022, Kosovo has formally applied for membership of the Council of Europe. For many years, this did not seem a possibility because not all CoE member states recognised Kosovo as a state, but with the new geopolitical situation following Russia's invasion of Ukraine and the ousting of Russian Federation from the Council of Europe, the Kosovar government has apparently assessed the time was right to give it a formal try. While this may be an uphill battle (see a reflection here), it will be for sure very noteworthy to follow whether the Council of Europe will again have 47 member states.

The Council of Europe has been working for years with the Kosovar authorities on a wide range of issues (see an overview here) and one could even speak of de facto partial integration into the Council of Europe's work and normative standards. On addition, the ECHR has been part of parcel of the legal order of Kosovo for a long time too, being applied domestically even if Kosovo so far could not ratify it. This leads to the paradoxical situation that ECHR provisions can be used in Kosovar courts but applications to the European Court of Human Rights are not (yet) possible - one could call this an example of domestication before ratifying. The ECHR is thus not an alien document to the Kosovar legal order.

Thursday, 12 May 2022

Webinar on the European Court of Human Rights: Between Law and Anthropology

On 19 May, the Max Planck Institute for Social Anthropology is hosting an online conversation with Professor Jessica Greenberg and Professor Angelika Nußberger on the European Court of Human Rights: Between Law and Anthropology. The event will be moderated by Dr Alice Margaria.
To join the conversation, you can register on this link by 17 May.
Here is the information about the speakers:
Jessica Greenberg is an associate professor of Anthropology at the University of Illinois, Urbana-Champaign. Prior to coming to UIUC, Greenberg was an Academy Scholar at the Harvard Academy for International and Area Studies, and an assistant professor in Communication Studies at Northwestern University. She is the Co-Editor of the Political and Legal Anthropology Review (PoLAR), and is currently working on a book provisionally titled Ghosts in the Machine: Ethnographic perspectives on the European Court of Human Rights.
Angelika Nußberger is professor of international law, public law and comparative law at the University of Cologne and founding director of the Academy for European Human Rights Protection. She also serves as an international judge at the Constitutional Court of Bosnia and Herzegovina, Vice-President of the Venice Commission of the Council of Europe and President of the German Constitutional Lawyers Association (Vereinigung der deutschen Staatsrechtslehrer). She was a judge at the European Court of Human Rights elected on behalf of Germany from January 2011 to December 2019 and its Vice-President from February 2017. She has studied law and literature (German, Russian and French) in Munich, Würzburg, Moscow (1985 study visit) and Boston (visiting researcher at Harvard University 1994/1995). She worked at the Max-Planck-Institute for Foreign and International Social Law in Munich from 1993 to 2002.
Alice Margaria  is a Senior Research Fellow in the Department of Law and Anthropology of the Max Planck Institute for Social Anthropology. Her research interests lie at the intersections of diversity, family law and human rights. Margaria is the author of The Construction of Fatherhood: The Jurisprudence of the European Court of Human Rights (CUP, 2019). She teaches courses on gender and diversity at Free University Berlin, and is currently based at the University of Bayreuth (Germany) as a Bavarian Gender Equality grantee. 

Wednesday, 11 May 2022

Fully Funded PhD Positions on ECHR and Migration

The Amsterdam Centre for Migration and Refugee Law at Vrije Universiteit Amsterdam is offering two fully funded PhD positions to study the ambivalent role of the European Court of Human Rights as an actor and forum for the human rights turn in legal discourses on migration.

The PhD positions will be part of the project entitled “Who is empowered by Strasbourg? Migrants and States before the European Court of Human Rights”. This is one of ten projects which together form the interdisciplinary research group “Human Rights Discourse in Migration Societies” (Menschenrechtsdiskurse in der Migrationsgesellschaft, MeDiMi). The aim of MeDiMi is to determine the scope, forms and consequences of the expansion of human rights discourse in contemporary migration societies.

The doctoral thesis will be designed as a bi-national PhD between the Vrije Universiteit Amsterdam and JLU Giessen (‘co-tutelle’). The PhD researchers will cooperate closely with the project team located at the Amsterdam Centre for Migration and Refugee Law (ACMRL), and be embedded in a cooperative research consortium with MeDiMi partner institutes in Germany.

The application deadline is 1 June. For further information about the call, click here.

Friday, 6 May 2022

Conference on Systemic Non-Implementation of ECtHR Judgments

The European Implementation Network (EIN) is organising a conference entitled 'Systemic Non-Implementation of Judgments of the European Court of Human Rights - What Can Civil Society Do?' on 22 and 23 June in Strasbourg. While geared towards EIN members, other participants are also welcome and can register here. This is the conference's abstract:

'A key threat facing the system of the European Convention on Human Rights is the non-implementation of judgments of the European Court of Human Rights (“ECtHR”). Of the “leading” judgments handed down from the ECtHR in the last ten years – i.e. judgments identifying structural or systemic problems – 47% remain pending implementation. 

Overall, there are 1300 leading ECtHR judgments pending execution – which have been pending for an average of 6 years and 2 months. Every one of these judgments represents a human rights problem which has not been resolved. Their systemic non-implementation represents a threat to European values and the democratic way of life.

The European Implementation Network (“EIN”) is a network of organisations and individuals from across Europe, working towards the full and timely implementation of ECtHR judgments. EIN sees common barriers to effective ECtHR implementation across different states, including: a lack of political will on behalf of governments (either to implement in particular cases, or to implement ECtHR judgments generally); the absence of effective structures at the national level to systematically promote implementation (such as a high-level working group in the executive or a monitoring committee in the parliament); negative public narratives around ECtHR judgments; and a lack of significant international pressure to implement. 

This conference will use presentations and open discussion to highlight the main barriers to ECtHR implementation, identify common solutions, and share the solutions across European civil society. It will include presentations from leading members of the civil society movement to promote ECtHR implementation, as well as high level speakers from the Council of Europe and national governments. 

Proportion of pending leading cases: the darker the shade of red, the worse the country is at addressing human rights issues when these are identified in judgments of the European Court of Human Rights.

A preliminary list of topics of presentations is found further below. However, we also want to hear from you about the presentations that should be made during the event. This is a subject of critical importance to all who care about the ECHR system. We want the conference to feature the very best solutions to the problem of systemic ECtHR non-implementation. 

Call for Proposals

If you would like to propose a topic of presentation for the event, please send a short email to director@einnetwork.org . If you have a shareable solution to the issue of structural non-implementation of ECtHR judgments – or know someone who does – then it is important for European civil society to hear from you.  

Discussion topics 

A draft list of topics to address the systemic non-implementation of judgments of the European Court of Human Rights is set out below. 

These are currently divided into “bottom up” and “top down” approaches. “Bottom up” solutions are actions taken by civil society and others within each state, to promote implementation by authorities at the national level. These may be considered to be the most important. “Top down” solutions are actions taken by civil society to increase pressure by international bodies on national governments to implement ECtHR judgments. 

“Bottom Up” solutions

  • Creating positive narratives about the implementation of ECtHR judgments
  • Promoting the Creation of Structural Systems I: Governmental Working Groups with Civil Society Involvement 
  • Promoting the Creation of Structural Systems II: Parliamentary Monitoring Bodies
  • Monitoring of Structural Systems
  • Bringing Government personnel into direct contact with victims 
  • Promoting ECtHR judgment implementation in the most difficult contexts: including Azerbaijan, Turkey, and Russia 
  • Funding of civil society work in this area

“Top Down” solutions

  • Council of Europe I: increased use of infringement proceedings, or a different way to hold states to account?
  • Council of Europe II: increases to technical co-operation programmes
  • EU Pressure I: inclusion of non-implementation of ECtHR judgments in the EU’s rule of law agenda and dialogue with third countries (including in the EU accession process and in Eastern Partnership relations)'

Thursday, 5 May 2022

Online Book Panel on New ECHR Books

On 8 June 2022 at 16h00 CET, an 
online panel will be organized on “Minimalism vs. Maximalism? Challenges and Future Directions in the Interpretation of the European Convention on Human Rights”, chaired by Professor Eva Brems. It centres on three recent ECHR-related monographs and follows upon an online symposium on the three books over at our colleagues at Strasbourg Observers. One can register for the event on Zoom here. This is the abstract of the event:

'How does, and how should, the European Court of Human Rights interpret and apply the rights protected under the European Convention on Human Rights? The perceived tension between ‘minimalist’ and ‘maximalist’ approaches has remained a focal point in recent developments and debates on the subject. Building on three recently published books which add to, and substantially nuance, these debates, Dr Corina Heri, Dr Natasa Mavronicola and Dr Jens T. Theilen are joined by Professor Eva Brems to reflect on some prominent challenges and potential directions in Strasbourg doctrine in light of and beyond the ‘minimalism-maximalism’ dichotomy. The event follows a symposium hosted by Strasbourg Observers on the three books: 
  • Corina Heri, Responsive Human Rights: Vulnerability, Ill-treatment and the ECtHR (Hart, 2021).
  • Natasa Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart, 2021).
  • Jens T. Theilen, European Consensus between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication (Nomos, 2021).'
Warmly recommended!

Tuesday, 3 May 2022

EIN & DRI Report on Non-Implementation of Judgments of European Courts

Democracy Reporting International and the European Implementation Network (EIN) have published a report on the problems with implementation of both the European Court of Human Rights and the European Court of Justice. The report is entitled 'Justice Delayed and Justice Denied: Non-Implementation of European Courts Judgments and the Rule of Law'. Providing both European trends and comparative analysis, it also provides information per country. In terms of degrees of implementation of judgments of the two courts (both in terms of extent and speed of implementing) the best scoring countries are Luxembourg, The Czech Republic, Denmark and Estonia. At the other end of the range, those with the biggest implementation issues are Bulgaria, Italy, Hungary and as the very worst one: Romania. This is the press release accompanying the report:

'Over the past few years, governments, media and citizens have become increasingly alarmed about the backsliding of fundamental European values. Yet, while the rule of law is becoming an issue of sanctions and hard political controversy, one missing piece of the rule of law puzzle is often overlooked: the non-implementation of judgments of two key European courts, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

The non-implementation of judgments of the European Courts has become a systemic problem. Around 40% of the leading judgments of the ECtHR relating to EU states from the last ten years have not been implemented. Each of these judgments represents a significant or structural problem, often with direct consequences for many citizens. And yet, authorities have not implemented them. 

At the same time, the CJEU is facing increasing contestation. While a certain resistance against the Luxembourg-based court is nothing new, it has increased in recent years, with courts and governments in EU Member States openly challenging the top body of the EU’s judiciary.

To shed more light on these worrying trends, Democracy Reporting International and the European Implementation Network (EIN) published the joint report 'Justice Delayed and Justice Denied: Non-Implementation of European Courts Judgments and the Rule of Law' offering a unique methodology that ranks member states based on three criteria: the number of leading judgments pending implementation, the proportion of leading judgments pending implementation from the last ten years and the average time leading cases have remained unimplemented.'

A recording of the launch event, with representatives from the Council of Europe, European Commission and European Parliament can be found here.

Wednesday, 27 April 2022

Mykola Gnatovskyy Elected New Judge in Respect of Ukraine

On 26 April 2022, the Parliamentary Assembly of the Council of Europe elected Mykola Gnatovskyy as judge to the European Court of Human Rights in respect of Ukraine. His term of of office of nine years will commence 
not later than three months after his election. He will be replacing the current ECtHR Judge Ganna Yudkivska.

Judge Gnatovskyy is professor of law at Taras Shevchenko National University of Kyiv. Between 2015 and 2021 he served as a president of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). He has also advised international institutions, including the OSCE and the International Committee of the Red Cross, on issues of human rights law and international humanitarian law. His and the CV of the two other Ukrainian candidates for the position of ECHR judge can be accessed here.

New Issue ECHR Law Review

The ECHR Law Review has just published online its newest issue (vol. 3. issue 2). It contains an editorial note, book review, notes and articles on such topical issues as the war in Ukraine, inter-State applications, mandatory vaccination, to name a few.


* Kanstantsin Dzehtsiarou and Vassilis P. Tzevelekos, 'The Aggression Against Ukraine and the Effectiveness of Inter-state Cases in Case of War'

* Lucas Lixinski, 'On the Circumscribed and Problematic Resurgence of Inter-State Human Rights Cases'

* Liv N Henningsen, 'The Emerging Anti-Stereotyping Principle under Article 14 ECHR'

* Paul Gragl, 'Kant and Strasbourg on Mandatory Vaccinations'

* Kushtrim Istrefi and Cedric Ryngaert, 'Makuchyaan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life'

Book Review
* Jaka Kukavica, 'Jens T Theilen, European Consensus Between Strategy and Principle: THe Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication'

Friday, 22 April 2022

New Handbook on European Law related to the Right of the Child

In the collaborative series between the European Court of Human Rights and the European Union's Fundamental Rights Agency (FRA), a new updated version has been published in open access of the Handbook on European Law related to the Right of the Child. The compilers describe the handbook as 'a point of reference on both Council of Europe and European Union law related to the protection and promotion of children’s rights in Europe.' The old version was published in 2015 and is still available in no less than 23 Council of Europe languages.