Trying it Twice

Rare are the cases in which applicants win their case in Strasbourg and then return to Strasbourg and again win a case when they are not satisfied with the way the state handles the outcome. This happened in this week's judgment in the case of Emre v. Switzerland (No. 2) . Emre is a Turkish national who had been living in Switzerland from the age of six. In his late teens and early twenties, he was convicted for a range of offences, including robbery and assault. As a result, he was expulsed and an indefinite ban on re-entry was pronounced by domestic courts in Switzerland. Emre lodged a complaint with the European Court of Human Rights, arguing that this violated his right to private andd family life (Article 8 ECHR). In August 2008, the Court held in its first judgment on the situation that this was indeed the case. Indicating in detail a wide range of factors (nature of the offences, severity of the penalties, strength of his ties with Switzerland and Turkey, among others) to be taken into account, it concluded that the Swiss authorities had not struck a fair balance. To their credit, the Swiss courts subsequently re-assessed the case and came to a new conclusion: the ban would now be for ten years instead of indefinitely. Arguing that this new judicial assessment constituted a new violation of his rights, Emre went to Strasbourg again.

The question then presented itself not only whether the new, shorter ban constituted a violation of Article 8 but also whethwer the previous judgment of Switzerland had been complied with (the obligation of Article 46 ECHR). The Court dealt with these two issues in conjunction. It assessed that the ten year ban did not comply with the conclusions and spirit of its own 2008 judgment. It held that the Swiss domestic court (le Tribunal fédéral) had subsituted the Court's balancing of interests by its own. Even if one would suppose, the Court went on to ascertain, that such a thing would be admissible, such renewed balancing should be complete and convincing in dealing with all the relevant factors the Court had identified. The Swiss court had, in the European Court's view, mainly focused on the element of unlimited duration at the detriment of other factors. Ten years was still disproportionate, in the Court's eyes.

And then, in a rather far-reaching conclusion, the Court held the following (in para. 75):

"l’exécution la plus naturelle de l’arrêt de la Cour, et celle qui correspond le plus à la restitutio in integrum, aurait été d’annuler purement et simplement, et avec effet immédiat, l’interdiction de territoire contre le requérant. A supposer même qu’un autre résultat aurait pu être acceptable, la Cour estime que la nature obligatoire des arrêts au sens de l’article 46 § 1 et l’importance de leur exécution effective, de bonne foi et compatible avec les « conclusions et l’esprit » de l’arrêt auraient commandé, dans les circonstances concrètes de l’affaire, un examen plus complet des considérations du premier arrêt de la Cour."

Thus, the most "natural interpretation" (whatever that may mean in legal terms) and the one closest to restitutio in integrum would have been to annul immediately and completely the ban. And even if another result (a shorter ban) would have been acceptable, a good faith execution of the Strasbourg judgment by Switzerland would have necessitated a more complete application of the considerations in the first judgment of the European Court in this case.

What does this tell us? That is not easy to answer. The Court leaves the door slightly open for a state's own assessment, as long as it scrupulously applies all considerations indicated by the Court, or in the alternative the more "natural" solution is one which is as close as possible to restitutio in integrum. Is this another step towards more specific application of the Court's judgments? It certainly requires taking all the pointers the Court gives when finding a violation very seriously, even if no precise indication is given in the operative part of the judgment under Article 46 ECHR. The judgment shows that in this case the most beneficial solution for the applicant should have been chosen if the state was not prepared to be procedurally thorough enough to work in a convincing and complete way with all the Court's yardsticks. The more obedient the state is procedurally (following the Court's criteria), the more the Court is prepared to give leeway on the material assessment (the actual outcome of the balancing), it may seem. How this would apply to other situations than re-entry bans, and to situations covering other articles than 8 ECHR, remains to be seen ...

Judges Malinverni (the judge elected in respect of Switzerland, now succeeded by Helen Keller) and Björgvinsson dissented, arguing that under Article 46 ECHR states have the liberty to chose the way in which they implement the Court's judgments, especially - as in this case - when the judgment did not indicate specific measures to be taken. The renewed assessment by domestic courts, in their view, fell within the margin of appreciation.

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

New Book on Non-ECHR Monitoring in Council of Europe

Gauthier de Beco, of the Centre for Philosophy of Law at the University of Louvain, has written 'Human Rights Monitoring Mechanisms of the Council of Europe' published with Routlegde. Finally a book that introduces and systematically compares, in short introductions in one volume, all the non-ECHR human rights monitoring mechanisms of the Council of Europe. This is the abstract:

The book studies the human rights monitoring mechanisms of the Council of Europe. It provides an in-depth examination of six such mechanisms: the Commissioner for Human Rights, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT), the European Committee of Social Rights (the ECSR), the Advisory Committee on the Framework Convention for the Protection of National Minorities (the ACFC), the European Commission against Racism and Intolerance (ECRI) and the Committee of Experts of the European Charter for Regional or Minority Languages (the CECL).

The human rights monitoring mechanisms of the Council of Europe seek to establish a permanent dialogue with governments to encourage them to better implement human rights treaties. They function principally through the use of national reports, on which basis they make recommendations, and may also visit or question states directly. The book looks at each mechanism in turn, discussing their composition, functions and working methods, as well as their relationship with other actors. It includes both a general discussion of the role of European human rights monitoring mechanisms as well as a comparative analysis of these mechanisms. The book aims to provide a clear understanding of the underlying approach of European human rights monitoring mechanisms and the challenges faced by them in terms of effectiveness. It will be useful for practitioners and students alike, especially those following courses in human rights or related fields.

And these are the chapter with contributors:

* Preface by Thomas Hammarberg
* Introduction: The Role of European Human Rights Monitoring Mechanisms, Gauthier de Beco
* 1. The Commissioner for Human Rights, Lauri Sivonen
* 2. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (The CPT), Renate Kicker
* 3. The European Committee of Social Rights (The ECSR), Olivier De Schutter and Matthias Sant’Ana
* 4. The Advisory Committee on the Framework Convention for the Protection of National Minorities (The ACFC), Gauthier de Beco and Emma Lantschner
* 5. The European Commission against Racism and Intolerance (ECRI), Lanna Yael Hollo
* 6. the Committee of Experts of the European Charter for Regional or Minority Languages (The CECL)
* Robert Dunbar Conclusion: A Comparative Analysis of European Human Rights Monitoring Mechanisms, Gauthier de Beco

Hearing on the Katyń Massacre Case

Today history is featuring in the European Court of Human Rights. A hearing is currently being held on the aftermath of the Katyń massacre, a notorious episode of the Second World War. In 1940 the secret police of the Soviet Union murdered over 21,000 people, including many Polish army officers after the Soviets had occupied parts of Poland. When later on in the war the Nazis discovered the mass graves, the Soviets denied responsibility and continued to do so until 1990, when an official investigation was started, which was later taken over by the Russian Federation after the dissolution of the USSR. A few years ago a number of relatives of those murdered in Katyń turned to the European Court in Strasbourg to complain about the inadequacy of the investigation. This is what the Court's press release has to say about the case so far:

The investigations into the mass murders were started in 1990. The criminal proceedings lasted until 2004 when the decision to discontinue the investigation was made. The text of the decision has remained classified to date and the applicants did not have access to it. On 26 November 2010 the Russian Duma adopted a statement about the “Katyń tragedy”, in which it reiterated that the “mass extermination of Polish citizens on USSR territory during the Second World War” had been carried out on Stalin’s orders and that it was necessary to continue “verifying the lists of victims, restoring the good names of those who perished in Katyń and other places, and uncovering the circumstances of the tragedy...".

The applications were lodged with the Court on 19 November 2007 and 24 May 2009
respectively. They were communicated to the Russian authorities respectively in
October 2008 and November 2009. The Court declared admissible, on 5 July 2011, the applicants’ complaint under Article 2 (right to life) of the European Convention on Human Rights, namely that the Russian authorities failed to carry out an adequate criminal investigation into the circumstances surrounding the deaths of their relatives. At the same time, the Court joined to its examination of the merits of the complaint the issue of temporal jurisdiction, in other words, whether the Court could examine the adequacy of an investigation into events which had occured before Russia ratified the Convention.

In the same decision, the Court also declared admissible the applicants’ complaint that the way the Russian authorities reacted to their requests and applications amounted to ill-treatment under Article 3 (prohibition of inhuman or degrading treatment) of the Convention.

From a legal point of view the case indeed raises important questions on the ratione temporis jurisdiction of the Court. For the relatives of the victims, one may hope the case will contribute indirectly to more clarity on what happened and who was responsible. A lot of historical works have been published on the tragic events of 1940, but a full official investigation by the Russian authorities is still lacking.

The hearing will be available online this afternoon here. The earlier partial admissibility decision of July 2011 can be found here.

Article on Supreme Courts and Evolutive Interpretation of the ECHR

Eirik Bjorge of the universities of Oxford and Oslo has published an article in the International Journal of Constitutional Law (Vol. 9, issue 1, 2011), entitled 'National Supreme Courts and the Development of ECHR Rights' in which he looked at the cases of the United Kingdom, France and Germany. This is the abstract:

The evolution of rights under the European Convention on Human Rights (ECHR) has in recent years engendered the question of how far national supreme courts ought to go in interpreting the Convention standards evolutively. Should national courts, in other words, play an active role in the development of the Convention, or must they defer this development to the Court? Examining the jurisprudence of national supreme courts in the U.K., France, and Germany, the present article examines this question both “normatively,” by way of looking at the external exigencies of the Strasbourg jurisprudence, and “descriptively,” by way of looking at what in point of fact the national courts have done in this regard. The three national judiciaries studied here have approached this in various ways. The common theme is that all three systems have gone very far in taking onboard a national concept of the ECHR precept of “evolutive interpretation.”

A History of Violations in Statistics per State

The European Court of Human Rights has published an online statistical overview of its entire history of judgments grouped per state in pie charts 'Statistics on Judgments per State'. It covers the whole period of 1959 to 2010. For each country it shows a division into which rights were mostly at stake and what the outcome of the proceedings was (violation, no violation, striking out of list, friendly settlement).

The pie charts show that, as is widely known, most violations concern the right to a fair trial (including the notorious problem of too lengthy judicial proceedings), the right to liberty and the protection of property (these taken together take up 71% of the total). But the differences between countries are quite striking. Sometimes this is due to the relatively small number of judgments concerning a certain counry. For Andorra 50% of the very small number of violations found was about the prohibtion of discrimination. Often, it gives an insight into where the biggest human rights problems for a particular country can be found (at least within the sphere of ECHR rights). For Hungary, for example, a striking 82% of violations concerned the length of proceedings, in Bosnia 32% of violations related to the protection of property. The same variety can be found in the outcome of proceedings: whereas for Bulgaria and Russia only 1% ends up in friendly settlements, for Iceland this is 25% percent. Even taking account the obvious difference in size between the countries and the number of complaints, it also might show a different attitude in working towards outcomes which are acceptable for both applicants and states. For Turkey, for example, which also has to deal with a high numer of complaints, the percentage is 8%.

The overview also shows the grand total of the Court's history: 96% of all applications was either inadmissible or struck out. Only 4% ended up in a judgment. Again a clear pointer that any concerns or fears that the Court is encroaching on a large scale on national powers should be put into perspective.

European Yearbook on Human Rights 2011 Published

The newest edition of the European Yearbook on Human Rights (2011) has been published. The yearbook includes a very wide range of articles on human rights, including a number on the ECHR. This is the abstract:

In the human rights field, 2010 was a year both of continuity and reform: from the 10th anniversary of the European Charter on Fundamental Rights and the quickening pace of the EU’s accession to the European Convention on Human Rights to the reform of the Human Rights Council.

Defining and discussing key developments in human rights in Europe and in the world, the third edition of the European Yearbook on Human Rights brings together 33 contributions by renowned human rights experts that provide a much needed overview and much sought after analysis.

Edited jointly by representatives of four major European human rights research, teaching and training institutions, the Yearbook 2011 contains extensive sections on developments in the field of the three main organizations charged with securing human rights in Europe: EU, Council of Europe and OSCE. A further chapter contains contributions on the role of civil society in human rights protection and on cross-cutting topics.

Holistic in its approach, but detailed in its analyses, the European Yearbook on Human Rights 2011 provides its readers with a comprehensive overview of the human rights situation in Europe in 2010. The impressive array of authors – academics and diplomats, practitioners and human rights experts – makes the book essential reading for anyone interested in human rights in Europe and beyond.

The articles relating to the European Convention on Human Rights are:

* L’adhésion de l’Union européenne à la Convention européenne des droits de l’homme et des libertés fondamentales, by J. Jacqué (p. 143-158)
* Accession revisited: will fundamental rights protection trump the European Union's legal autonomy, by P. Gragl (p. 159-172)
* The role of interim measures indicated by the ECtHR under Rule 39 for the protection of aliens against their removal contrary to the ECHR, by A. Szklanna (p. 361-374)
* Strasbourg’s interim measures under fire: does the rising number of state incompliances with interim measures pose a threat to the European Court of Human Rights? by Y. Haeck, C. Burbano Herrera and L. Zwaak (p. 375-403)
* "No significant disadvantage" - first case-law on the new admissibility criterion introduced by Protocol No. 14 to the European Convention on Human Rights, by S. Baier (p. 405-413)
* Implementation of judgments of the European Court of Human Rights as a tool to establish a "language of law": the case of Moldova, by I. Lupusor (p. 415-425)
* Across the universe? The extra-territorial application of the European Convention on Human Rights, by R. Lawson
(p. 427-444)
* The litigation practices of non-governmental organizations before the European Court of Human Rights: an overview, by L. van den Eynde (p. 539-548)

Article on ECHR Application to Northern Cyprus

The newest issue of the International Journal of Human Rights (Vol. 15, Issue 6, 2011) includes an article on Northern Cyprus and the ECHR. It was written by Leonard Hammer (affiliation not provided) and is entitled "Re-examining the extraterritorial application of the ECHR to northern Cyprus: the need for a measured approach".This is the abstract:

Extraterritorial application of the ECHR to Turkey in northern Cyprus in a whole scale manner is misplaced. Given the underlying reasoning behind the effective control standard that is linked to notions of international humanitarian law and occupied territory, and accounting for a historic understanding of the situation in northern Cyprus and how it developed, it is conceivable that Turkey should not maintain the full gamut of obligations under the ECHR.

Unfortunately, the article is somewhat shoddily edited. The famous Banković is spelled both as Bancovic and Bankovic in this article, for example. And the author Quénivet is misspelled as Quenivet ...

M.S.S. Judgment Echoes in Luxemburg

At the beginning of this year, the European Court of Human Rights issued its important M.S.S. v. Belgium and Greece judgment, on the asylum seekers transfer system within the European Union (see my earlier report here). In summary, the Court held that asylum conditions in Greece were so bad that not only Greece had violated the ECHR, but also Belgium by transferring an asylum seeker back to Greece. It seemed a matter of time until this would influence EU law and/or practice. Last week, one of the first indications in this respect surfaced: Advocate General Trstenjak of the Court of Justice of the European Union gave an opinion in preliminary ruling procedures in joined cases from the United Kingdom and Ireland. The opinion advices the Court of Justice to apply reasoning in its later decision in these cases which very much echo the M.S.S. case. Importantly, the opinion in effect argues for similar (although not exactly the same) obligations in this regard flowing from the European Union's Charter on Fundamental Rights. The A-G explicitly refers to and uses the M.S.S. judgment in her arguments. The A-G concludes that:

A Member State in which an asylum application has been lodged is obliged to exercise its right to examine that asylum application under Article 3(2) of Regulation No 343/2003 where transfer to the Member State primarily responsible under Article 3(1) in conjunction with the provisions contained in Chapter III of Regulation No 343/2003 would expose the asylum seeker to a serious risk of violation of his fundamental rights as enshrined in the Charter of Fundamental Rights. Serious risks of infringements of individual provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member State primarily responsible which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred are not sufficient, on the other hand, to create an obligation on the part of the transferring Member State to exercise the right to assume responsibility for the examination itself under Article 3(2) of Regulation No 343/2003.

And that:

The obligation to interpret Regulation No 343/2003 [the asylum regulation at stake, A.B.] in a manner consistent with fundamental rights precludes the operation of a conclusive presumption according to which the Member State primarily responsible for examining an asylum application will observe the asylum seeker’s fundamental rights under European Union law and all the minimum standards laid down in Directives 2003/9, 2004/83 and 2005/85. The Member States are not barred, on the other hand, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his asylum application.

Thus, before sending back, a determination should be made whether a serious risk of violation of fundamental rights exists, starting from the rebuttable presumption that such rights will be guaranteed. Thus, in principle mutual trust still exists, unless there are indications otherwise, but the trust is not a blindfold anymore. States are not required to actively establish in advance whether the asylum's seeker's rigths are fully guaranteed, but they are under an obligation to take into account (and act accordingly) indications of serious risks of violations.

Let us see whether the Court of Justice of the European Union will follow this opinion!

The full press release can be found here.

Hat tip to FRA!

New ECHR Articles

A few new academic articles and papers concerning the ECHR have become available online. The first is an article on human trafficking entitled 'Complementary Protection for Victims of Human Trafficking under the European Convention on Human Rights' published by Vladislava Stoyanova in the Goettingen Journal of International Law (Vol. 3, No. 2, 2011). This is the abstract:

The international legal framework regulating the problem of human trafficking contains the presumption that the return of victims of human trafficking to their countries of origin is the standard resolution for their cases. However, victims might have legitimate reasons for not wanting to go back. For those victims, resort to the legal framework of the European Convention on Human Rights could be a solution. I elaborate on the protection capacity of Article 3 when upon return victims face dangers of re-trafficking, retaliation, rejection by family and/or community and when upon return to the country of origin victims could be subjected to degrading treatment due to unavailability of social and medical assistance. In light of the Rantsev v. Cyprus and Russia case, I develop an argument under Article 4 that states cannot send victims to those countries which do not meet the positive obligations standard as established in the case. Article 8 could be relevant: first, when the level of feared harm in the country of origin does not reach the severity of Article 3 but is sufficiently grave to be in breach of the right to private life and engage the non-refoulement principle, and second, when the victim has developed social ties within the receiving state and the removal will lead to their disruption.

The second is an article on network neutrality on the internet and Article 10 ECHR by Jasper P. Sluijs, entitled 'From Competition to Freedom of Expression: Introducing Art. 10 ECHR in the European Network Neutrality Debate'. This is the abstract:

Network neutrality concerns a heated debate on the role of Internet Service Providers (ISPs) as a potential gate keeper for Internet access of end-users and online content providers. In line with standard practice in European telecommunications policy the European regulatory response to the issue of network neutrality has been framed mainly in economic terms. At the same time, European civil society organizations have interpreted network neutrality in terms of fundamental rights, particularly freedom of expression. Moreover, while the amended regulatory framework for telecommunications now includes explicit references to fundamental rights, it remains unclear if and how fundamental rights should be applied to network neutrality disputes. This article relates network neutrality to the rich body of Art. 10 ECHR case law, and asks to what extent this jurisprudence is of relevance to network neutrality discussions. The findings of this research reveal that the claim that network management by ISPs would violate end-users’ freedom of expression is less straightforward than often assumed. Moreover, the opposite case in which network neutrality regulation violates ISPs’ freedom of expression is less far-fetched than it may seem. These conclusions are meant to move the European discussion on network neutrality and fundamental rights beyond rhetoric, towards a more substantial and analytical approach.

Article on Pilot Judgments most downloaded on SSRN

Usually it's difficult to assess how many people read one's academic work. But the online open access database SSRN offers the possibility to see at least how many people download articles and thus show initial curiosity in a certain article. I am happy to note that my article 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' which originally appeared in the Greek law journal Nomiko Vima is now the most downloaded article concerning the ECHR on SSRN. Thanks to all readers!