Tuesday 5 December 2023

Lecture: 'Why the European Convention on Human Rights still matters'

On Thursday 30 November 2023, the President of the ECtHR Síofra O’Leary delivered the annual Mackenzie Stuart Lecture for Cambridge University's Centre for European Legal Studies on 'Why the European Convention on Human Rights still matters'. In the lecture President O'Leary discusses the relationship between the United Kingdom and the Convention, the role of the Convention as an instrument of peace and stability in Europe, the right to access to justice, the rule of law and the continued importance of the Convention in Europe and beyond. 

A recording of the lecture can be found here

Friday 1 December 2023

NNHRR Interview on Climate Change Litigation before the ECtHR

Last week, Anmol Gulecha (Tilburg University) and Jolein Holtz (Leiden University) gave an interview to the Netherlands Network for Human Rights Research (NNHRR) on the case of Duarte Agostinho and Others v. Portugal and 32 Others, one of the three climate change cases currently pending before the Grand Chamber of the European Court of Human Rights. This case concerns the greenhouse gas emissions from 33 Member States of the Council of Europe. According to the applicants in the case, these emissions contribute to global warming and lead to heatwaves, affecting the applicants' health and living conditions. The interview provides some interesting comments on the case.

The interview is the first episode of the NNHRR #HumanRightsNow interview series which discusses current issues in International and European Human Rights Law. 


Friday 24 November 2023

New Book on the Freedom of Religion or Belief in the ECHR

Caroline K. Roberts (Oxford Brookes University) has just published a new book entitled Freedom of Religion or Belief in the European Convention on Human Rights: A Reappraisal. This is the abstract:

''The right to freedom of thought, conscience and religion in Article 9 of the European Convention on Human Rights (ECHR) has become increasingly significant and contested. Through an examination of ECHR Article 9, its drafting history, and the related jurisprudence of the European Court of Human Rights (ECtHR), Caroline K. Roberts challenges the classic approach to this right in the literature. Roberts argues that claims that there is, or should be, a clear binary and hierarchical distinction between the absolutely protected internal realm and the qualified external realm in this right are not founded textually or jurisprudentially. Rather, the primary materials suggest that the internal and external aspects are deeply interrelated, and this is reflected in the ECtHR's nuanced and holistic approach to ECHR Article 9 protection. This comprehensive, rigorous and up-to-date reappraisal of ECHR Article 9 and the related ECtHR jurisprudence will be essential reading for academics and practitioners.''

Monday 20 November 2023

Launch of the Open Council of Europe Academic Networks Project

The Council of Europe has launched the Open Council of Europe Academic Networks (OCEAN) project. The aim of the initiative is to strengthen co-operation between the Council of Europe and European universities and research institutions, and to promote the Council of Europe convention system through sharing and creating knowledge. OCEAN membership is open to universities as well as individual academics teaching at these institutions or conducting research independently. Membership is also open to research institutions (independent or as part of a university), university faculties and existing national and European academic networks working on issues related to Council of Europe conventions. 

This is a summary of the project:

'The Open Council of Europe Academic Networks (OCEAN) unite universities, research institutions and scholars from the Council of Europe´s 46 member states around the shared goal of human rights, democracy, and the rule of law.

Initiated in 2018 by Prof. Michele Nicoletti, then president of the Council of Europe Parliamentary Assembly, OCEAN is now ready to welcome academic members, institutional and individual, to join.

The Open Council of Europe Academic Networks aim at sharing and creating knowledge around the Council of Europe´s more than 200 conventions in European academia through teaching and research.

OCEAN provides a platform for connecting universities, research institutions and individual academics who focus on a Council of Europe convention of their choice or other topics related to the work and mission of the Council of Europe. It serves as a resource for information on Council of Europe activities; helps to share best practices and research; connects its members to the Council of Europe and its expert teams and gives them the opportunity to join events organised by OCEAN in Strasbourg or in Council of Europe member countries offline and online.

Institutional members are requested to organise a minimum of one academic activity per year – for example workshops, conferences, summer or winter schools – in the substantive fields described above. Individual members are required to take a leading role in the organisation of the above activities or publish an academic paper or book focused on a Council of Europe convention or other topics related to its mission.'

According to the FAQ about membership, the following is expected of members:

'OCEAN members choose at the beginning of their membership one or several Council of Europe conventions they are interested in. They are expected to engage in education, research, and other academic activities that promote these self-chosen conventions.

Universities, research institutions and networks are required to organise and carry out one academic activity per year (workshop, conference, summer or winter school…). Individual members are required to either engage in one of the above activities (as organiser or speaker) or conduct research or publish (article, book) on the chosen Council of Europe convention.'

More information about how to join the initiative can be found here

Friday 17 November 2023

Changes to the Rules of Court, Including on Interim Measures

In the past few months, the Court has been initiating some changes to its
Rules of Court. Several of the changes relate to both degrees of transparency: on the public character of documents (Rule 33 § 1 on this has been amended) and a new, connected  Rule (44F) on the treatment of 'highly sensitive documents' relating for example to national security interests of the state or "equally compelling interests" of an applicant.

The second set, of proposed changes in this case, relate to interim measures. The Court is in the proces of codifying its practice, also explicitly into the specific Rule 39 on interim measures. Earlier this month, the Plenary Court - so all judges together - provisionally adopted changes to Rule 39. States parties to the ECHR, specific organisations with experience in representing applications and relevant bar associations have now been asked by the Registrar to provide comments before 4 December. Depending on the input received the Court will subsequently amend or adopt the proposed changes. After this, the practice direction on interim measures will also be updated.

According to the Court's press release, the Plenary Court has also decided about the following:

'• Disclosure of the identity of the judges who render the decisions on interim measure requests;
• Maintaining the practice of providing reasons for Rule 39 decisions on an ad hoc basis and
issuing press statements where the circumstances of the cases so require;
• Issuing formal judicial decisions to be sent to the parties;
• Maintaining the established practice of adjourning the examination of the requests for interim measures and requesting the parties to submit information in those circumstances where the situation is not extremely urgent and where the information that the applicants could submit to the Court was not sufficient to enable the Court to examine the request.'

Article 39 currently reads as follows:

'1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.
2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.
3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.
4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.'

The proposal for the new text is the following:

'1.  The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings. The Court’s power to decide on requests for interim measures shall be exercised by duty judges appointed pursuant to paragraph 4 of this Rule or, where appropriate, the President of the Section, the Chamber, the President of the Grand Chamber, the Grand Chamber or the President of the Court.
2.  Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.
3.  A duty judge appointed pursuant to paragraph 4 of this Rule or, where appropriate, the President of the Section, the Chamber, the President of the Grand Chamber, the Grand Chamber or the President of the Court may request information from the parties on any matter connected with the implementation of any interim measure indicated.
4.  The President of the Court shall appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.'

For more background information and the basics, please consult this factsheet developed by the Court's registry as well as this video. The Rules of Court themselves , information on several specific aspects, as well as translations in a number of languages, can be found on a dedicated page on the Court's website.

Wednesday 15 November 2023

New Online Course 'Interplay between the ECHR and the EU Charter of Fundamental Rights'

The HELP (Human Rights Education for Legal Professionals) Programme of the Council of Europe has launched the free online course 'Introduction to Human Rights Protection in Europe - The Interplay between the ECHR and the EU Charter of Fundamental Rights'. This six-hour online course focuses on the protection of human rights under the system of the Council of Europe with the ECHR, and under the European Union with the EU Charter of Fundamental Rights. The course consists of an introductory module and four substantive modules. A statement of accomplishment is obtained after completing the course. 

Here is the outline of the course:

Introductory Module: 
• Information about the course 
• Learning objectives 
• Welcome videos

Module 1: Introduction to Human Rights Protection in Europe
• Pioneers of Europe
• The Council of Europe (Conventions; Member States; key organs)
• The European Union (evolution; EU institutions, bodies, offices, agencies; EU accession to the ECHR)
• Recap
• The very different twins
• Knowledge check

Module 2: Protection of Human Rights within the Council of Europe and the European Union 
• The European Convention on Human Rights (introduction; rights and
freedoms; obligations; interpretation; implementation; supervision; execution)
• The European Social Charter (introduction; characteristics; interpretation; rights; monitoring; impact)
• The Charter of Fundamental Rights of the EU (sources of interpretation; level of protection; rights and principles; scope of application; limitations; rationale of Art 51; direct (vertical and horizontal) effect; who applies it?; beneficiaries; access to CJEU)
• General points and comparative perspective
• Recap
• Knowledge check

Module 3: Interplay 
• Evolution of the relationship between the ECHR and the EU law (foundations; journey towards recognition; convergence and interplay)
• Interplay (how do national judges apply the ECHR, the ESC, the EU Charter and national bills of rights?; how does the ECtHR monitor member states applying the EU law when ECHR rights are invoked?; how can conflicting scenarios be prevented and resolved?)
• Knowledge check

Module 4: Practical Implications
• Raising an issue of violation of rights (how can rights protected by the ECHR and/or the EU Charter be invoked before courts?)
• Jurisdiction of the ECtHR and the CJEU in respect of human rights violations
• From national to European courts: preliminary rulings and advisory opinions
• Recap
• Knowledge check

The course is freely available in self-learning format on the Council of Europe HELP platform.

Thursday 9 November 2023

Webinar on the ECtHR and Domestic Case-law Application

On 4 December 2023 from 10:00 to 12:00 CET, the European Lawyers Foundation (ELF) and the Council of Bars and Law Societies of Europe (CCBE) are organizing a webinar entitled 'The European Court of Human Rights and its case-law application at national level: How to enhance subsidiarity'. The webinar will discuss the principle of subsidiarity and the national implementation of the ECtHR's case-law. The program can be found here

You can register here

Monday 6 November 2023

New Book on the ECtHR and the Norm against Torture

Ezgi Yildiz (California State University) has just published a new book entitled 'Between Forbearance and Audacity: The European Court of Human Rights and the Norm against Torture'. 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.'

The European Court of Human Rights and the Norm against Torture

Thursday 26 October 2023

New Session of MOOC on ECHR Starts Again on 2 November

In a week, on Thursday 2 November, 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:

Wednesday 25 October 2023

Systemic Problems Unveiled: The Yalcinkaya Case and the Demise of the Bylock Digital Evidence

By Dr. iur. Yasir Gökce

The Turkish Government has declared the Gülen Movement a terrorist organization and blamed the Movement for orchestrating the 2016 coup attempt. To identify the members of this organization, the Government has controversially decided that any individual who downloaded and/or used the ‘ByLock’ encrypted messaging application was part of the Gülen Movement and thus can be charged with terrorism membership. Thousands of affected individuals have found the measures to be erroneous and unlawful.

On 26 September 2023, the Grand Chamber of the European Court of Human Rights (Court or ECtHR) in Yalcinkaya v Türkiye examined the human rights implications of the use of the ByLock app. In this landmark judgment, the Court found a violation of Articles 6, 7 and 11 of the Convention. Referring to thousands of applications on its docket involving similar complaints, the ECtHR stressed that the problems which had led to findings of violations were systemic in nature and called on Turkey to take general measures as appropriate to address those systemic problems.

The case was lodged by the applicant, Mr. Yalcinkaya, who had been dismissed from his public service as a teacher with the state of emergency decree no 672 after the botched 2016 coup attempt and convicted of terrorism membership due to his alleged link with the Gülen Movement, an organization designated as terrorist by the Turkish Government. Such link was established in Mr. Yalcinkaya’s domestic penal proceedings from his alleged use of an electronic communication app, namely ByLock, his membership of a lawfully established trade union (Aktif Eğitim-Sen) and an association (Kayseri Voluntary Educators Association) and his use of a bank account.

In this contribution, I examine the analysis carried out by the European Court of Human Rights on the approach of the Turkish judiciary vis-à-vis the digital evidence under Articles 6, 7, 8, and 11 of the Convention, uncovering both what the Court well-appreciated and missed. The concluding paragraph elucidates why this judgment is of utmost importance for the human rights protection mechanism in Turkey.

The Court’s Findings under Article 7 of the Convention

Under Article 7 of the Convention, the ECtHR examines the ‘exclusive use’ argument of the Turkish government and its practical implications for the applicant. The government purports that the Bylock app was exclusively designed and used by the Gülen Movement for its secret communication needs, despite the fact that the app had been downloaded approx. 1 million times from open sources. Such narrative of the ‘exclusive use within a closed domain’ was dictated by the government on judicial authorities in the form of a technical expert report produced by the Turkish intel agency. Eventually, this narrative led the judicial authorities to summarily convict any individuals, including the applicant, whose digital footprints had been somehow discovered in Bylock servers, of terrorism membership, irrespective of the content of the messages exchanged or the identity of the persons with whom the exchanges were made (§ 258).

Against this backdrop, the Court first elucidates that, under the Turkish law and jurisprudence around terrorism membership, the elements of the crime are fulfilled “where the accused’s organic link with the armed organization is established, based on the continuity, diversity, and intensity of his or her activities, and where it is demonstrated that he or she acted knowingly and willingly within the organization’s hierarchical structure” (§ 184). The Court then reveals the automaticity and certainty with which the domestic courts equate the mere download and/or use of the Bylock app with the membership of an armed terrorist organization. In other words, an individual who allegedly used the app has met, as the Court reveals, the continuity, diversity, and intensity criteria, as well as the criterion of acting knowingly and willingly, prescribed in Turkish law (§ 264). Eventually, the Court concludes that the reliance on the mere use of the Bylock app without establishing the presence of the constituent material and mental elements of the offense in an individualized manner corresponds to an unforeseeable application of the law lying outside of what the law proscribes. Therefore, it holds that Turkey has violated the principles of legality and foreseeability as well as individual criminal responsibility, which are enshrined in Article 7 of the Convention (§ 267).

It is praiseworthy that the ECtHR examined the case within the ambit of Article 7 and to the extent that it concerns not only the applicant but all victims prosecuted and arrested owing to the ‘exclusive use’ narrative of the Turkish government. However, I find it unfortunate that the Court overlooked the fact that the Turkish judiciary had applied the material and mental elements of the offense retrospectively. In other words, at the time of the acts attributed to the applicant, namely the Bylock usage, the Gülen Movement was not proscribed as a terrorist organization and, on the contrary, enjoyed a wide and respectable presence in all sectors of Turkish society. Furthermore, it would have been, at the very least, an eye-opener for the Turkish government if the Court had scrutinized whether this secret communication app was used during and/or for the purpose of staging the 15 July coup attempt, which the government alleges, has been orchestrated by the Gülen Movement and due to which, by and large, the latter was declared as a terrorist organization. Yet another approach of the Court, which I also find unfortunate, is that it addressed the issue of using a secret communication app not primarily as a mere enjoyment of the freedom of expression and right to respect for private life but as potential conduct that might form the constituent elements of the offense of terrorism. On the contrary, such a rights-oriented approach was the one adopted in various Bylock-related opinions of the United Nations Working Group on Arbitrary Detention (UNWGAD).

The Court’s Findings under Article 6 of the Convention

The Court’s finding on the violation of the right to fair trial pertains to the applicant’s assertions concerning the integrity and reliability of the Bylock raw data as well as the legality of its collection and analysis by the Turkish intel agency, a.k.a. the MIT. As also acknowledged by the government, by the time a domestic court issued a seize order for the Bylock servers, the MIT had long collected the Bylock raw data and analyzed it not only for intelligence purposes but also to initiate criminal proceedings (§ 334). It remains unknown on what legal grounds the MIT collected the data and under compliance with which legal and digital forensic principles it examined those data and identified the users as potential terrorism suspects. For instance, a number of independent digital forensic experts (herehere, and here), which were repeatedly referred to by the applicant, uncover numerous traces of concrete manipulation of the data collected by the MIT as well as a biased analysis methodic such as to vindicate some pre-determined outcomes. The mere fact that the MIT has reduced the number of people who downloaded ByLock from over 1 million to 215,000, then to 102,000, and then to 91,000 raises serious concerns regarding the accuracy and reliability of the ByLock data.

Having been cautious in refraining from acting as an appellate court by analyzing the admissibility of the Bylock findings, the ECtHR scrutinizes the applicant's concerns summarized above under the principles of equality of arms and adversarial proceedings. In this vein, the Court examines whether the applicant was granted procedural safeguards that would enable him to raise those concerns in the criminal proceedings (§ 316, §317). The Court first determines whether the applicant’s concerns on the integrity, reliability, and legality of the Bylock findings lay at the core of the case and were essential for concluding it (§ 332, § 345). After establishing the essentiality and vitality of those concerns, the Court examines how the domestic courts reacted to them. The Court notes that the applicant’s persistent requests that the Bylock raw data be made available and accessible to him or be sent for an independent examination simply went unanswered. Nor the aforementioned inconsistencies and irregularities raised by the applicant were addressed by the domestic courts, as noted by the ECtHR. The Court concludes eventually that the applicant was deprived of sufficient safeguards to equip him with a genuine opportunity to challenge the evidence against him and conduct his defense in an effective manner and on an equal footing with the prosecution (§ 341). This conclusion led the Court to find the violation of the right to a fair trial enshrined in Article 6 of the Convention.    

Having observed that the individual internet traffic information and telecommunication records (a.k.a. CGNAT and HTS data) are in line with the data obtained by the MIT from the Bylock servers, the ECtHR indicated that it does not have sufficient elements to impugn the integrity and accuracy of the Bylock data (§ 323). It is unfortunate that, in this observation, the Court overlooked numerous traces of manipulation of the Bylock raw data documented in technical reports of independent digital forensic experts (herehere, and here), which the applicant relied upon throughout this case. These reports cast serious doubts on the integrity and accuracy of the Bylock data. Furthermore, the Court failed to appreciate the seriousness of the fact that the individual internet traffic information and telecommunication records had been obtained outside the statutory time limit. After the expiration of the retention period, those records were kept under the custody of the information and communication technologies authority and the MIT with no legal basis at all, as had been the case for the initial period of the Bylock raw data. In other words, those records are also fraught with illegality and lack of chain of custody and highly prone to manipulation. And yet the Court observed that the accuracy of the Bylock raw data could be substantiated with some records whose accuracy is itself under suspicion. Last but not least, the Court refrained from pronouncing a violation from the standpoint of the right to privacy enshrined in Article 8 of the Convention. Although a great volume of private communication data of the applicant was seized and processed unlawfully, unforeseeably, and irresponsibly, the Court considered his arguments to this effect peripheral and not having situated at the heart of his complaints, a reasoning which seems unsatisfactory (§ 371, §372).

Conclusion

Immediately after the publication of the judgment, the Turkish minister of justice displayed his resentment with the finding of violations, criticizing the Court for analyzing the evidentiary value of the Bylock findings and thereby acting as a “court of appeal” in contrary to its well-established precedence. This concern was also conveyed by the government in its submission in the form of a warning for the Court to refrain from acting “as a court of ‘fourth instance’ by questioning the conclusions reached by domestic courts or to substitute its own views for their findings” (§ 289). In the face of this remark, the Court adopts throughout the decision a cautious approach, whereby it keeps reminding that it is not competent to review the weight attached to evidence or to ascertain how digital evidence is to be collected or admitted in criminal proceedings (e.g., §243, §255, §302, §316, §412). On the other hand, the Court also reminds that it would remove such restrain when the domestic authorities reach conclusions or pronounce judgments in an arbitrary or manifestly unreasonable manner and to the extent that those conclusions and judgments infringe rights and freedoms protected by the Convention (§ 302, §304).

Overall, this landmark judgment of the Grand Chamber stands out, by and large, with its well-examination, meticulous scrutiny, and spot-on conclusions, and sets a powerful precedent for pending and prospective cases of similar nature. The judgment delivered a resounding message regarding the protection of fundamental human rights, as it uncovered severe violations of key provisions of the Convention. In parallel with the finding of the UNWGAD that the deprivation of liberty in Turkey is systematic, the Court describes the problems that had led to findings of violations as being systemic in nature. It takes attention to approximately 8,500 applications on the Court’s docket involving similar complaints under Articles 7 and/or 6 of the Convention and to tens of thousands of potential applications to come, as hinted at by around 100,000 ByLock users according to official figures from Turkey. Eventually, referring to Article 46 of the Convention, the Court calls on Turkey to take general measures as appropriate to address the systemic problems that led up to the violations stemming from the Turkish judiciary’s approach to Bylock evidence (for a deeper analysis on how the judgment should be adopted by the Turkish judiciary, see here). It remains to be seen whether Turkey will abide by the judgment, although President Erdogan's remarks on the judgment at the opening ceremony of the new legislative appears not reassuring. Against this backdrop, it is up to the victims to be proactive and vigilant and have the judgment included in their respective case dossiers or lodge applications for retrial on the basis of severe violations found in the judgment.