Friday, 16 June 2017

PACE Report on Delays in Implementation of Judgments

Last month, the Legal Affairs Committee of Parliamentary Assembly of the Council of Europe (PACE) discussed the newest report on implementation of the European Court's judgments. This 9th report was made by Pierre-Yves Le Borgn’ and, as always, is a valuable resource to get insight into the many problems in giving follow-up to the judgments of the Court. The number of judgments pending at the Committee of Ministers has now almost reached 10,000. More worrying than that is that there is an increase in the number of leading cases, in which states are really required to do something new to remedy a situation and usually change their laws or policies structurally, that have not yet been implemented for more than five years. Here, it clearly is not only about lack of capacity within national jurisdictions or slow procedures of amending legislation, but also about political unwillingness. As the Committee noted, it does not stop there. There also are "attempts made to undermine the Court’s authority and the Convention-based human rights protection system."

As in earlier years, a relatively small number of states causes most problems in this respect. This time - and close observers may not be surprised - Italy, the Russian Federation, Turkey, Ukraine, Romania, Hungary, Greece, Bulgaria, the Republic of Moldova and Poland are the main problematic countries. 

The appendix to the report give a detailed overview of where matters stand in relation to a number of leading cases in a large number of countries.

Friday, 9 June 2017

New System for Single-Judge Decisions

The European Court of Human Rights announced last week that it has adopted, as of this month, a new procedure which allows more detailed reasoning to be given in single-judge decisions. Ever since the single-judge procedure was introduced through Protocol 14 in 2010, the Court had been applying a very summary procedure to deal with the large backlog of tens of thousands of cases. Both by practitioners and academics this state of affairs, born out of necessity, has often been criticised as it gave no clarity or reasoning to people whose applications were rejected by single-judge decisions.

Two years ago, the State Parties at the High Level Conference in Brussels on the Convention, welcomed the Court's intention "to  provide brief reasons for the inadmissibility decisions of a single judge, and invites it to do so as from January 2016." It has taken a bit longer, but now that - in the Court's own words - "the backlog has been eliminated", more detailed reasoning will be given, but still not in all cases. This is how the procedure will unfold:

"Instead of a decision-letter, applicants will receive a decision of the Court sitting in single judge formation in one of the Court’s official languages and signed by a single judge, accompanied by a letter in the relevant national language. The decision will include, in many cases, reference to specific grounds of inadmissibility. However, the Court will still issue global rejections in some cases, for example, where applications contain numerous ill-founded, misconceived or vexatious complaints."

This still may not satisfy everyone, but it at least come along some of the road. As the court indicated in its press release, it has to "strike a balance between addressing a legitimate concern about the lack of individualised reasoning and maintaining an efficient process for handling inadmissible cases so as not to divert too many resources from examining potentially well-founded cases." The very fact that this is now possible, should be a good sign.

Friday, 19 May 2017

New ECHR Readings

Please find a number of new ECHR readings from journals and blogs below: 

* Vassilis P. Tzevelekos, 'The Al-Dulimi Case before the Grand Chamber of the European Court of Human Rights: Business as usual? Test of Equivalent Protection, (Constitutional) Hierarchy and Systemic Integration', Questions of International Law, no. 38 (2017).

* Onder Bakircioglu and Brice Dickson, 'The European Convention in Conflicted Societies: The Experience of Northern Ireland and Turkey', International and Comparative Law Quarterly, vol. 66, issue 2 (2017).

The newest volume of the Hungarian Yearbook of International Law and European Law (2016) includes:

* Veronika Szeghalmi, 'Private Messages at Work – Strasbourg Court of Human Right’s Judgement in Bărbulescu v. Romania Case'. 
* Zoltán Tallódi, The Question of Prison Overcrowding as Reflected in the Decisions of the European Court of Human Rights''.
* János Tamás Papp, 'Liability for Third-Party Comments before the European Court of Human Rights – Comparing the Estonian Delfi and the Hungarian Index-MTE Decisions'.

And over on EJILTalk! the following recent postsa relate to the ECHR and the Court's Judgments:

* Alice Donald, ‘Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?’.
* Vladislava Stoyanova, ‘Irregular Migrants and the Prohibition of Slavery, Servitude, Forced Labour & Human Trafficking under Article 4 of the ECHR’.
* Marko Milanovic, ‘Strasbourg Judgment on the Beslan Hostage Crisis’. (on the same judgment, see laso Ed Bates' piece here).

Friday, 12 May 2017

Book on ECHR History

Marco Duranti, a historian based at the University of Sydney, has written an important new study about the origins of the European Convention of Human Rights. The book, published by Oxford University Press, is entitled 'The Conservative Human Rights Revolution -European Identity, Transnational Politics, and the Origins of the European Convention'. Based on extensive archival research, it proposes that - contrary to the image, in the eyes of many, of the Court in the past decades as a progressive developer of human rights - the original Convention negotiations were dominated by political conservatives, who saw the Strasbourg system as a safeguard for stability and containment rather than as a tool for change. This is the abstract:

'The Conservative Human Rights Revolution radically reinterprets the origins of the European human rights system, arguing that its conservative inventors envisioned the European Convention on Human Rights (ECHR) not only as an instrument to contain communism and fascism in continental Europe, but also to allow them to pursue a controversial political agenda at home and abroad. Just as the Supreme Court of the United States had sought to overturn Franklin Roosevelt's New Deal, a European Court of Human Rights was meant to constrain the ability of democratically elected governments to implement left-wing policies that conservatives believed violated their basic liberties, above all in Britain and France.

Human rights were also evoked in the service of reviving a romantic Christian vision of European identity, one that contrasted sharply with the modernizing projects of technocrats such as Jean Monnet. Rather than follow the model of the United Nations, conservatives such as Winston Churchill grounded their appeals for new human rights safeguards in an older understanding of European civilization. All told, these efforts served as a basis for reconciliation between Germany and the rest of Europe, while justifying the exclusion of communists and colonized peoples from the ambit of European human rights law.

Marco Duranti illuminates the history of internationalism and international law — from the peace conferences and world's fairs of the early twentieth century to the grand pan-European congresses of the postwar period — and elucidates Churchill's Europeanism, as well as his critical contribution to the genesis of the ECHR. Drawing on previously unpublished material from twenty archives in six countries, The Conservative Human Rights Revolution revisits the ethical foundations of European integration after WWII and offers a new perspective on the crisis in which the European Union finds itself today.'

Friday, 5 May 2017

Event on Implementation of ECtHR Judgments in the UK

On 15 May, the Bingham Centre for the Rule of Law and Leicester Law School are organizing an event in London, entitled 'Implementation of the European Court of Human Rights: Opportunities and Challenges for he Rule of Law'. The event will focus on the United Kingdom's implementation record and more broadly on the impact of Strasbourg judgments in the UK. According to the organizers, the speakers will "consider the UK government's recent report 'Responding to Human Rights Judgments' which outlines its position on the implementation of the Court's judgments and responds to recommendations made by the Joint Committee on Human Rights in its 2015 scrutiny report 'Human Rights Judgments'. We will also hear a UK government perspective "from the inside" on the Committee of Ministers and its work supervising the execution of judgments. Speakers will then consider the wider picture of implementation across the member states and will reflect on the process for the execution of judgments and the role of the Committee of Ministers in this regard."

The event will be held at the British Institute of International and Comparative Law in the early evening (at 17h30). Speakers will include Ed Bates, Nuala Mole and Philip Leach. For more information, see here.

Tuesday, 2 May 2017

Book on Procedural Review in European Fundamental Rights Cases

My colleague, SIM fellow and Utrecht University, Professor Janneke Gerards and Eva Brems of Ghent University have published a co-edited volume entitled 'Procedural Review in European Fundamental Rights Cases' with Cambridge University Press. With a wide range of chapters, it unites and compares the approaches of the European Court of Human Rights with those of other bodies. This is the abstract: 

'Traditionally, courts adjudicate fundamental rights cases by applying substantive tests of reasonableness or proportionality. Increasingly, however, European courts are also expressly taking account of the quality of the procedure that has led up to a fundamental rights interference. Yet this procedural review is far from uncontroversial. There still is a lack of clarity as to what 'procedural review' really means, what its potential for judicial decision-making is, how it relates and should relate to substantive review, and what its limitations are. Featuring contributions from experts in the field, this book is the first in-depth study into procedural review, considering the theoretical and conceptual issues at play, as well as the applicability of procedural review in different legal systems. It will therefore be of great importance to scholars and practitioners interested in fundamental rights adjudication in Europe, judicial reasoning and procedural justice'

Congratulations, Janneke and Eva!

Tuesday, 25 April 2017

Conference on Derogations from the ECHR and Situations of Emergency

On 4 May, the Institute of International Law and International Relations of the University of Graz is organising a confernece entitled "Derogation from the European Convention on Human Rights under Contemporary Situations of Emergency". The conference will be held at the Faculty of Law. Beyond a general European perspective, cases studies of four countries are included: the United Kingdom, Ukraine, France and Turkey.

The full conference programme can be found here. To register, please send a message to: bettina.friedl (at) uni-graz.at 

Wednesday, 19 April 2017

My Article on Influence of ECHR Anti-Torture Jurisprudence on the UN Human Rights Committee

I have just posted on SSRN my new paper on jurisprudential influences of Strasbourg case-law on the work of the United Nations Human Rights Committee. It is entitled 'Echoes of Strasbourg in Geneva. The Influence of ECHR Anti-Torture Jurisprudence on the United Nations Human Rights Committee'. This is the abstract: 

"In this article the influence of the European Court of Human Rights’ case-law on the United Nations Human Rights Committee will be analysed. This particular choice of supervisory bodies enables us to trace such potential influence adequately since both the Court and the Committee supervise treaties which mainly concern civil and political rights: the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Both are legally binding elaborations of the Universal Declaration of Human Rights. Many of the rights in the two treaties are, as a consequence, formulated in a similar way. This facilitates a systematic comparison between the case-law of the two supervisory institutions. To map the possible influence of the Court’s jurisprudence on the Committee’s work as precisely and concretely as possible, I will focus on the prohibition of torture and inhuman and degrading treatment."

Tuesday, 11 April 2017

Book on Equality of Arms under Article 6 ECHR

Omkar Sidhu has published the book 'The Concept of Equality of Arms in Criminal Proceedings under Article 6 of The European Convention on Human Rights' with Intersentia Publishers. This is the abstract:

"Inherent to and at the very core of the right to a fair criminal trial under Article 6 of the European Convention on Human Rights is the concept of equality of arms (procedural equality) between the parties, the construct given detailed and innovative treatment in this book. 

As a contextual prelude to more specific analysis of this concept under Article 6, certain influential historical developments in trial safeguards which mark a centuries-long evolution in standards of, and the value attributed to, procedural fairness are identified to establish a background to Article 6 before its inception. Thereafter, the book offers a thorough theoretical insight into equality of arms, investigating its multi-faceted value, identifying its contemporary legal basis in Article 6 and in international law, and defining its fundamental constituent elements to elucidate its nature, including its underpinning relationship with Article 6(3). The book argues that the most important of these constituent elements––the requirement of ‘disadvantage’––is not equated by the European Court of Human Rights with inequality in itself, which would be a dignitarian interpretation, but with inequality that gives rise to actual or, in some circumstances, inevitable prejudice. This proposition is the golden thread running through the analytical heart of the book’s survey of case-law in which the Court’s approach to procedural equality in practice is demonstrated and assessed within the context of the Article 6(3) rights to challenge and call witness evidence, to adequate time and facilities, and to legal assistance. 

The end result is a book for both scholars and practitioners that will not only forge an enhanced general understanding of procedural fairness safeguards and standards, including from a historical perspective, but also provoke, more specifically, new reflection on the concept of equality of arms."

Monday, 3 April 2017

Enroll for May Edition of MOOC on ECHR

After two successful editions and over 8000 participants in total, we have now opened up enrollment for the third edition of the MOOC 'Human Rights for Open Societies - An Introduction to the European Convention on Human Rights'. The starting date is 8 May, but you can already enroll now.

More information: This course was developed by Antoine Buyse, Janneke Gerards and Paulien de Morree, connected to the Netherlands Institute of Human Rights (SIM) at Utrecht Law School.

Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And often, minorities are 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 often is an uphill battle to work towards that ideal. 

The course will help participants equip themselves and learn more about what human rights are and how they work. They will learn when and how people can turn to the European Court of Human Rights to complain about human rights violations. And they will learn when and how the Court tries to solve many of the difficult human rights dilemmas of today. The course looks at, amongst others, the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. The rights of migrants,  refugees, and other vulnerable groups will also be addressed in this MOOC. Finally, the course will look into the question of whether it is possible to restrict rights and under what conditions. 

Is this a course for you?
This course is open to everyone interested in the protection of human rights and the linkages with open and democratic societies. 

Interested in participating? 
The MOOC ‘Human Rights for Open Societies – An Introduction to the European Convention on Human Rights’ will start on May 8, 2017. 

Enroll here on Coursera. Enrollment is for free – participants only pay a fee if they want to obtain a certificate at the end of the course.