Article on ECHR and Homosexuality

The newest issue of the Human Rights Law Review (volume 10, issue 1) is out (no pun intended) and contains an article by Paul Johnson of the University of Surrey, entitled 'An Essentially Private Manifestation of Human Personality’: Constructions of Homosexuality in the European Court of Human Rights'. This is the abstract:

This article explores the continuing evolution of the European Convention on Human Rights in respect of homosexuality. In considering the Court’s case law as a mechanism through which homosexuality is discursively constructed, the article examines how this discourse both enables and constrains human rights in relation to sexual orientation in contemporary Europe. The discursive construction of homosexuality that underlies the Court’s interpretation of the Convention in respect of sexual orientation produces a problematic outcome for sexual minorities: whilst it has been instrumental in socialising a pan-European consensus on intimate and sexual privacy, the Court’s understanding of homosexuality ultimately sustains a separation between the rights associated with the private and public spheres and, in doing so, fails to address the ongoing social discrimination experienced by gay men and lesbians.

The UK, Devolution, and the ECHR

The campaign for parliamentary elections in the United Kingdom has, amongst many issues, led to a debate on whether the current Human Rights Act, which is based on the ECHR, should be replaced by a specific British Bill of Rights. The NGO Justice has published a report on how this affects the devoluted powers of Scotland, Wales and Northern Ireland. The report can be found here.

Thanks to Lallands Peat Worrier for bringing this to my attention!

ECHR and France News

Last month, a new blog on the ECHR and France was started by Zeki Mardin, in the English language. It focuses on both new applications, pending ones, and follow-up of the European Court's judgments concerning France. The intended readership is not so much academics, but rather professionals working with law firms and NGOs. Good luck with that new resource, Zeki!

Two Articles on EU and ECHR

As a follow-up to my recent post on possible EU accession to the ECHR, here are references to two recent academic articles on the issue, addressing some problems in diverging case-law:

* Jiri Malenovsky (a judge at the European Court of Justice), 'L’enjeu délicat de l’éventuelle adhésion de l’Union européenne à la convention européenne des droits de l’hommes : de graves différences dans l’application du droit international, notamment général, par les juridictions de Luxembourg et Strasbourg', Revue Générale de Droit Public International, first issue of 2010.
* Johan Callewaert, 'The European Convention on Human Rights and European Union Law: a Long Way to Harmony', European Human Rights Law Review (no. 6, 2009) pp. 768-783.

The latter article can be found through Westlaw. As to the French article, I do not know whether it can be accessed online (if anyone knows, please notify).

Book on ECHR Reforms and Domestic Implementation

This week a new book on the relationship between the European Court's reforms and a better domestic implementation of the Convention has been published by Intersentia. Costas Paraskeva, a human rights lawyer in Cyprus, has written 'The Relationship Between Domestic Implementation of the ECHR and the Ongoing Reforms of ECtHR' based on his PhD thesis defended at London Metropolitan University. This is the abstract:

The European Court of Human Rights has become a “victim of ongoing reforms”. Continuous efforts to streamline and reinforce the system have proved inadequate in managing the challenge of its ever-increasing caseload. The consensus is that further reforms to the European Convention on Human Rights mechanisms are necessary in order to cope with the serious influx of cases from the 47 member states of the Council of Europe.

This book analyses the set of five Recommendations referred to in the 2004 Declaration of the Committee of Ministers of the Council of Europe to encourage member states to take effective domestic steps in ensuring appropriate protection of the Convention rights at the domestic level, in full conformity with the principle of subsidiarity. It also traces and evaluates the impact of the Convention in the domestic legal orders of Cyprus and Turkey and assesses, comparatively, the effective implementation of the May 2004 Recommendations in these two member states.

This book demonstrates how efforts to secure the survival and effective operation of the Court by reducing the ever increasing number of individual applications, must primarily be undertaken at national level so that the burden to comply with the Convention is carried by the member states in the first instance. The 2004 Recommendations, which address the source of the problem, are appropriate prescriptions for a healthy future and constitute a technical vehicle for implementing the Convention in the domestic legal orders of member states. These Recommendations constitute guidelines stemming directly from the Convention and are therefore invaluable in assisting member states in the pursuit to improve the protection of human rights “at home”.

The table of contents can be found here.

Medvedev Signs Protocol 14 ECHR

Yesterday, the Russian President Dmitry Medvedev has signed the law approving Protocol 14 ECHR, reports press agency ITAR-TASS. This was the last remaining step to take before Russia formally ratifies by depositing its acceptance with the Council of Europe in Strasbourg. Protocol 14's time has finally come. Now all attention can focus on the Interlaken conference preparing essential reforms.

EU Accession to ECHR

Yesterday and the day before, the Spanish Presidency of the European Union and the EU's Fundamental Rights Agency organised a conference on EU accession to the ECHR. The entry into force of the European Union's Lisbon Treaty at the end of last year in combination with the upcoming entry into force of Protocol 14 ECHR will enable this accession. Accession will mean that a judge elected in respect of the EU will become part of the Court, bringing in particular expertise. Individuals will be able top bring complaints about the EU to Strasbourg after exhausting the EU's own existing system of remedies. For answers to some of the main questions concerning the issue, click here. For the speech that Council of Europe's S-G Thorbjørn Jagland delivered, see here.

No Religion on Identity Cards

Yesterday, the Court ruled in the case of Sinan Isik v. Turkey on the mentioning of religious affiliation on identity cards. Mr Isik was a member of the Alevi community, which is seen by some as a part of Islam and by others as a separate religion. His request to change the religion on his identity card from 'Islam' to Alevi was refused by the authorities. Only since 2006 a new legal provision allowed citizens to ask for a change of religion on their identity cards or even to have the entry left blank.

The Court reiterated that the freedom of religion (article 9 ECHR) also included a negative aspect, including the rigth not having to manifest one's religion or beliefs. The core of the issue for the Court was not so much the refusal to register the applicant as Alevi, but more broadly the very fact that he either had to indicate his religion or formally ask for the religion box to be left empty. That in itself, in the Court's view, violated the Convention. It seems from the judgment that this goes not only for identity cards, but also for civil registers.

The case is especially interesting since Turkey is a state with the notion of "laïcité" as one of its defining aspects, but the state here determined - through the legal advice of the Religious Affairs Directorate, that the Alevi faith was part of Islam.

Continuing a recent trend in its own jurisprudence, the Court indicated under Article 46 ECHR (the duty for states to abide by the Court's judgments) that the complete deletion of the 'religion box' on identity cards would be an appropriate remedy for the violation concerned.

One of the seven judges, Cabral Barreto dissented, arguing that the Court went too far and deviated from its own case-law by holding that even in a case like this, in which people were allowed to ask for a deletion of the mentioning of a particular religion without divulging what other beliefs they held, the Convention was violated. He does add that he sees no value or interest whatsoever in including religion on an identity document.

The judgment itself is in French, but a press release in English can be found here.

PACE Addresses Property Issues of Refugees and IDPs

Permit me to highlight a resolution adopted by the Parliamentary Assembly (PACE) last week on the issue of 'Solving property issues of refugees and displaced persons.' The resolution contains a set of recommendations for member states and is based on human rights law, including the European Convention, but also international norms on housing and property restitution, such as the Guiding Principles on Internally Displaced Persons and the Pinheiro Principles. The recommendations amongst others call for timely and effective property restitution irrespective of the status of political negotiations - thus adopting a clear human rights approach. The background report, prepared by Danish MP Jørgen Poulsen, can be found here. He also refers to my own 'Post-Conflict Housing Restitution. The European Human Rights Pespective, with a Case Study on Bosnia and Herzegovina', which elaborates on the links between housing and property restitution and the European Convention.

Italy Asks for Referral to Grand Chamber of Crucifix Case

Just a few days before the three months deadline, Italy asked last week for referral of the case of Lautsi to the Grand Chamber of the Court. At the beginning of November last year, the Court had found that the compulsory presence of crucifixes in classrooms of public schools violated the ECHR. See my earlier comment here. Amongst others, the request for referral contends that the Chamber's judgment was in contradiction with earlier Court case-law, leaves too little margin of appreciation, and - following the reactions in many European countries - is obviously a serious issue of general importance (one of the criteria in Article 43 ECHR for referral). I think it would be very good if the Court, through the Grand Chamber, would make a new assessment of the case, since this is indeed a question with many ramifications and a very thoughtful (and maybe more pragmatic approach) is called for here.

Thank you to Nicola Bassan for pointing this out!