Tuesday 21 December 2010

Last Post of 2010

On this shortest day of the the year, the Court has made one last big puff and delivered over 50 judgments, at the end of a year which was both turbulent, very busy for the Strasbourg institutions, and which also saw increasing criticism on the European human rights mechanisms as such. At least, with the Interlaken Summit, the contracting parties have started to take the predicament of their common human rights protection system more seriously. Let us hope they take concrete steps in the year ahead to follow-up on their pledges made at the edge of the Swiss lakes to protect human rights more effectively!

The 150th post of 2010 is also the last one of the year on this blog. With over 125,000 pageviews this year (compared to 70,000 last year) from over 160 countries the audience of ECHR Blog continues to grow. Many thanks to all my readers for their attention and input!

I wish you all a good holidays season and a happy 2011!

Monday 20 December 2010

NGO Petition on Possible Fees at the Court

A large number of leading NGOs (Amnesty International, the AIRE Centre, EHRAC, the ICJ, Interights, Justice and Liberty) have launched a campaign related to one of the proposals which are being discussed in the wake of the Interlaken Reform Summit to ease the workload of the European Court: the possible introduction of Court fees for applicants. The group of NGOs is concerned "that the proposal to impose fees on applicants to the Court risks undermining and is inimical to the right of petition." They therefore call upon all those involved in litigation at the Court and any other NGOs and association interested to sign a petition to support their call. Amongst others, they ask the ECHR state parties to, at the very least, undertake a costs-benefits analysis before deciding on the issue. Read the background document with the petition attached here. This is the summary of the document:

The 47 governments of the Council of Europe are considering a proposal which would impose an additional barrier for victims of human rights violations to have access to justice. This document gives reasons why some governments and non-governmental organizations, including Amnesty International, the AIRE Centre, the European Human Rights Advocacy Centre (EHRAC), Human Rights Watch, the International Commission of Jurists, Interights, Justice and REDRESS, are calling for the proposal to be rejected outright. Amnesty International encourages civil society organizations in all CoE member states to sign the petition appended to the document.
Click here for a recently issued commentary of the group of NGOs on the Interlaken Action Plan.

The follow-up to Interlaken will be discussed in a Council of Europe meeting in Izmir in April next year.

ECHR Case-Law Updates in Swedish

The Swedish judicial administration provides a handy, almost monthly (11 times a year) update service of ECHR case-law in the form of an electronic digest. A covenient way for all Swedish ECHR-interested and Scandinavians and others able to read Swedish. I have also added it to the sidebar under 'relevant links'.

Friday 17 December 2010

Grand Chamber Abortion Judgment on Ireland

Yesterday, the Grand Chamber of the European Court of Human Rrights issued its judgment in the long-awaited case of A, B, and C v Ireland on abortion rights. Essentially, the Court held that Ireland must enable access to abortion in situations in which a woman's life is at risk. Although legally and in theory this was already possible in Ireland, doctors assisting in this faced criminal sanctions if after the fact the life of the woman could be shown not to have been at risk - a powerful dissuader in practice to access to abortion. Leaving a margin of appreciation, the Court did not hold that the ECHR obliges states to allow abortion in other situations. A wide variety of abortion legislation throughout Europe is thus still possible. The judgment dealt with the complaints of three women, in different situations, but having in common that they felt compelled to travel from Ireland to the United Kingdom in order to undergo an abortion, because of the legal restrictions in Ireland itself.

The applicants complained about Article 3 ECHR (prohibition of ill-treatment), amongst others, but the Court held that although (para. 163) "travelling abroad for an abortion was both psychologically and phydically arduous for each of the applicants", this did not reach the minimum level of severity for Article 3 to apply.

The core of the complaints was assessed under the right to private life (Article 8 ECHR). Under that provision the Court emphasized the following, on the margin of appreciation of states (paras. 231-238 - and let me quote at length here):

231. The Court considers that the breadth of the margin of appreciation to be accorded to the State is crucial to its conclusion as to whether the impugned prohibition struck that fair balance. The Government maintained that, in the context of abortion laws, the State’s margin was significant and unaffected by any European or international consensus. The first and second applicants argued that, while a margin was to be accorded, the right to life of the unborn could not be accorded primacy to the exclusion of the proportionate protection of the rights of women and, further, that it was crucial to take account of the consensus outside of Ireland towards broader access to abortion.

232. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when determining any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans v. the United Kingdom [GC], cited above, § 77). Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (Evans v. the United Kingdom [GC], cited above, § 77; X., Y. and Z. v. the United Kingdom, judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, § 44; Frette v. France, no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin, cited above, § 85). As noted above, by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion, not only on the “exact content of the requirements of morals” in their country, but also on the necessity of a restriction intended to meet them (Handyside v. the United Kingdom judgment and the other references cited at paragraph 223 above).
233. There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention.
234. However, the question remains whether this wide margin of appreciation is narrowed by the existence of a relevant consensus.
The existence of a consensus has long played a role in the development and evolution of Convention protections beginning with Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no. 26), the Convention being considered a “living instrument” to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention (Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 41; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 60; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 102; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003-I and Christine Goodwin v. the United Kingdom [GC], cited above, § 85).
235. In the present case, and contrary to the Government’s submission, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court notes that the first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States. Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life. Certain States have in recent years extended the grounds on which abortion can be obtained (see paragraph 112 above). Ireland is the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. Given this consensus amongst a substantial majority of the Contracting States, it is not necessary to look further to international trends and views which the first two applicants and certain of the third parties argued also leant in favour of broader access to abortion.
236. However, the Court does not consider that this consensus decisively narrows the broad margin of appreciation of the State.
237. Of central importance is the finding in the above-cited Vo case, referred to above, that the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected (see the review of the Convention case law at paragraphs 75-80 in the above-cited Vo v. France [GC] judgment), the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention (Tyrer v. the United Kingdom, § 31; and Vo v. France [GC], § 82, both cited above).
238. It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a State’s Convention obligations and, given the Court’s responsibility under Article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved (Open Door, § 68). A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre-natal life or on the basis that the expectant mother’s right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the Contracting States, as the Government maintained relying on certain international declarations (paragraph 187 above). However, and as explained above, the Court must decide on the compatibility with Article 8 of the Convention of the Irish State’s prohibition of abortion on health and well-being grounds on the basis of the above-described fair balance test to which a broad margin of appreciation is applicable.
The Court then concluded that the interference was provided by law and pursued the legitimate aim of protecting public morals in Ireland. As to the necessity test, the Court held that the state had struck a fair balance in the cases of applicants A (an unemployed woman living in poverty with her four children living in foster care) and B (who was not prepared to become a single parent). However, in the case of applicant C a woman in remission from cancer fearing that her pregnancy would cause a relapse of the cancer), the Court found a violation of Article 8. Since her complaint related to the absence of a domestic procedure to establish whether such a risk truly existed (which would have enabled abortion), she did not have to substantiate that fear. The Court concluded that the legal procedures were insufficiently clear in practice (para. 264):

The Court considers that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation.
Here the Court in effect chastises the slowness of the Irish executive and legislative in implementing such clarity, since for more than a decade, this lack of clarity had been noted by official institutions, such as the Constitution Review Group, in Ireland itself.

Several judges attached concurring and dissenting opinions, several of which deal with the European consensus and margin of appreciation issue. The Lithuanian government (applicant C was a Lithuanian national) and a range of other third parties were given leave to intervene in the proceedings, both pro and contra abortion.

The press release on the case can be found here. For coverage by the UK Human Rights Blog, click here. And for coverage by the Human Rights in Ireland blog, click here.

Almost as soon as it was out, this judgment was nominated for the Women´s Link Worldwide´s Gender Justice Uncovered Awards. These awards are meant to identify the best and the worst judicial decisions related to gender justice. Other ECHR judgments nominated so far are Hajduova v Slovakia, and Konstantin Markin v Russia, both highlighted earlier on this blog. To nominate or vote, click here.

Thursday 16 December 2010

Lawyer's Guide on ECHR Admissibility Criteria

Connected to yesterday's post, the Court has launched another post-Interlaken initiative to try and stem the influx of new applications: a Partical Guide on ECHR admissibility criteria. The very elaborate document (over a 100 pages) is a clearly structured overview of the Court's admissibility criteria, with links in the document to the relevant jurisprudence. As the Court's president Costa said: "This handbook will enable lawyers to properly advise their clients on their chances of bringing an admissible case to the European Court of Human Rights. It will save them time, energy and unnecessary expense and it will free the Court to fulfil its vital role, judging serious and important cases to improve human rights protection for over 800 million people." One may hope he is right, but these efforts of information are no panacea for the Court's problems as a comment to yesterday's post rightly emphasized. Information is one thing, willingness to reconsider to apply is another. Still, it is a starting point which necessitates further training at the national level by national bar associations and during the education of lawyers.

For the moment the Guide is available in both French and English and there will be versions in Turkish and russian later on. Hopefully, other countries from which many applications come will decide to translate the guide into their own national languages.

Wednesday 15 December 2010

Ten New Case-Law Fact Sheets

In order to stem the flood of applications and to make the Court's jurisprudence better known, the Court has been posting so-called fact sheets on its website. These are thematic sheets with the main relevant cases in short summaries. Last week the Court added ten new sheets to the existing ones. They relate to the following issues: children’s rights, collective expulsions, conscientious objection, protection of journalists’ sources, racial discrimination, right to one’s own image, social welfare, trade union rights, transsexuals’ rights, and violence against women. The Court promises regular updates and therefore has also included pending cases.

Monday 13 December 2010

Farewell Seminar for Judge Christos Rozakis

The Athens Bar Association and the Greek Ministry of Justice, Transparency and Human Rights are organising a seminar at the occasion of the retirement of the Greek judge Christos Rozakis from the European Court of Human rights. The event will take place on Monday 20 December and is entitled 'The Protection of the Individual Within the European Legal Order'.

Time and venue: 18h30 in the Ceremony Hall of the Athens Bar Association (Akadimias str. 60, 1st floor).

Speakers will be:

-Vassileios Skouris, Chairman of the European Court of Justice: “The Judicial Protection of the Citizen within the European Union”;
-Ioannis Tentes, Attorney General: “Effects of ECHR and the jurisprudence of EuCHR on Greek Criminal Law”;
-Nikiforos Diamantouros, European Ombudsman: “The Ombudsman as a mechanism of extrajudicial protection of the individuals within the European Legal Order”;
-Marialena Tsirli, Référendaire of the European Court of Human Rights: “Local jurisdiction of the EuCHR: Geographical Limits of the European Protection of Human Rights”;
-Panagiotis Voyatzis, Référendaire of the European Court of Human Rights: “The Consequences of Strasbourg Judgments within Legal Time”;
and the honoree Christos Rozakis: “The Completion of European Protection with the accession of the European Union to ECHR”.

Book on Extraterritorial Reach of ECHR Wins Award

Last Friday, on human rights day, Michal Gondek's book 'The Reach of Human Rights in a Globalizing World: Extraterritorial Application of Human Rights Treaties', was awarded the Max van der Stoel PhD Thesis Award at Tilburg University. A large part of the book is dedicated to the extraterritorial reach of the European Convention on Human Rights. This is the abstract:

In the globalizing world of today, the conduct of states often affects the human rights of persons situated outside of those states’ territories. The problem of applying human rights to such state conduct has become increasingly topical as a result of phenomena such as the ‘war on terror’, foreign military interventions and economic globalization. The controversies as regards the applicability of human rights treaty law in such cases stem mainly from the wording of the relevant treaty provisions. The principal treaties on civil and political rights require states to guarantee certain human rights to persons ‘within their jurisdiction’, while treaties on economic, social and cultural rights specifically envisage international cooperation of states parties for the purposes of achieving these rights. The meaning of ‘jurisdiction’ and the precise nature and content of the obligation of international cooperation are subject to debate.

This study explores the question of extraterritorial application of principal universal and regional human rights treaties. It covers treaties on civil and political rights as well as those on economic, social and cultural rights. The study seeks to determine to what extent and under which circumstances human rights treaties are applicable to state conduct which affects the human rights of persons situated outside the borders of the state party in question. The problem is analyzed by reference to the rules of treaty interpretation and in the conceptual framework of public international law. It contains thorough analysis of preparatory works of the relevant treaties, the case law of the International Court of Justice and of human rights courts on the subject, as well as other output of human rights treaty bodies. State practice, including the case law of national courts, is also explored. The study argues for a flexible approach to extraterritorial application of human rights treaties, which would make it possible for the human right systems to respond to the challenges posed by the ever more notorious extraterritorial state conduct.
The table of contents can be found here. Congratulations, Michal!

Thursday 9 December 2010

My New Book on Margins of Conflict and the ECHR

Dear readers, allow me to highlight a book edited by myself, which has just been published with Intersentia Publishers in their Transitional Justice Series: "Margins of Conflict. The ECHR and Transitions to and from Armed Conflict". The book is the result of a seminar organised at the Netherlands Institute of Human Rights SIM of Utrecht University last year, in the context of its research focus on conflicts and human rights. I am very grateful for the collaboration of a number of leading ECHR experts in this book, both from Utrecht and from Leiden. The introduction was written by the Dutch judge at the European Court, Egbert Myjer. This is the abstract:

The European Convention on Human Rights was drafted in the wake of World War II. The dark shadows of war have never fully receded from Europe however. Armed conflict has resurged time and again, from Northern Ireland to Cyprus and Turkey, and from the former Yugoslavia to the Caucasus. This book focuses on the margins of conflict: human rights aspects of transitions from peace to armed conflict and vice versa. Firstly, it seeks to explore what limits human rights put on European societies which are on the brink of armed conflict. Secondly, it surveys the consequences of human rights violations committed during the armed conflict by looking at the aftermath of war. In a stimulating way, experts in their field offer food for thought on a broad range of material and especially procedural issues such as the territorial scope of the Convention, states of emergency, freedom of expression and conflict escalation, obligations relating to enforced disappearances, interim measures, and pilot judgments. Taken together, they reflect both the potential and limitations of human rights in the run-up to conflicts and their aftermath.
The table of contents can be found here. Recommended (how could I say otherwise)!

Tuesday 7 December 2010

Working Paper on 'Nullum Crimen, Nulla Poena Sine Lege'

For those readers who read French: Hélène Tigroudja of Artois University has posted a working paper on SSRN on the principle of 'Nullum Crimen, Nulla Poena Sine Lege' in the case-law of the European Court of Human Rights: International Crimes and the Principle 'Nullum Crimen, Nulla Poena Sine Lege' (Crimes de Droit International et Principe 'Nullum Crimen, Nulla Poena Sine Lege'). As the very succinct summary provides: Critical Overview of the jurisprudence of the European Court of Human Rights dedicated to Article 7 of the ECHR in cases of prosecutions of war crimes, crimes against humanity and genocide (Kononov case).

Friday 3 December 2010

Protection Against Domestic Violence Extended

This week, the European Court of Human Rights re-emphasized state obligations to protect victims of domestic violence in the case of Hajduová v. Slovakia. The case concerned a mother who had been verbally and physcially attacked by her husband - attacks which included death threats.

The Court seems to extend state duties under Article 8 ECHR (protection of private life). Whereas in the landmark case of Opuz v Turkey Article 8 had been violated because of domestic violence which had already occurred, in Hajduová the emphasis was on the real risk of future violence, even if it did not materialise in fact:

49. The Court observes that the instant application is distinguishable from the cases to which it has referred concerning domestic violence resulting in death (see, in particular, the Court's judgments in the cases of Kontrová v. Slovakia, no. 7510/04, ECHR 2007-VI (extracts) and Opuz cited above, in which it found violations of Articles 2 and 13 and Articles 2, 3 and 14 of the Convention respectively). It is clear that A.'s repeated threats following his release from hospital, which constitute the basis of the applicant's complaint under Article 8 of the Convention, did not actually materialise into concrete acts of physical violence (compare and contrast the case of Bevacqua, cited above, in which the Court found that the State had breached its positive obligations under Article 8). Notwithstanding, the Court considers that given A.'s history of physical abuse and menacing behaviour towards the applicant, any threats made by him would arouse in the applicant a well-founded fear that they might be carried out. This, in the Court's estimation, would be enough to affect her psychological integrity and well-being so as to give rise to an assessment as to compliance by the State with its positive obligations under Article 8 of the Convention.
Real vigilance and concrete action bu states is thus called for in such cases. The press release on the judgment can be found here.

Wednesday 1 December 2010

PhD Workshop on Legacy and Future of ECHR

The School of Law of University College Dublin is organising a workshop entitled 'The Legacy and Future of the ECHR: Evaluating Sixty Years of the European Human Rights Project' on 1-2 April 2011. Although it is primarily intended for PhD researchers, other (young) researchers are also invited to submit abstracts. Here is the full information:

The organising committee of the 2011 PhD Workshop on Human Rights in University College Dublin School of Law invite proposals for a workshop to be held 1st-2nd of April on the theme of ‘The Legacy and Future of the ECHR: Evaluating Sixty Years of the European Human Rights Project’.

This interdisciplinary workshop seeks submissions from a legal, political, philosophical, socio-scientific or interdisciplinary perspective that critically evaluate the role of the European Convention on Human Rights over the past sixty years and the impact it will have on the future European landscape. This dynamic, intensive workshop aims to stimulate debate on both the successes and the limitations of the ECHR. The workshop will take a plenary form, with established academics specialist in the field acting as discussants to participants’ papers.

Papers are invited on the themes such as, but not limited to, the following:

• The role and structure of the European Court of Human Rights, especially in light of the Interlaken Declaration
• The relationship between the EU and the ECHR, particularly in the light of the Lisbon Treaty
• The challenges to the ECHR posed by socio-economic needs, environmental crises, security (including human security), and the ever-increasing workload of the Court
• The broader role of the Council of Europe

Applicants are asked to submit an abstract of no more than 400 words on their proposed papers. We are delighted to announce that selected papers will be published (subject to editorial review) in a special edition of the German Law Journal. In addition the Irish Society for International Law will present a prize for the best paper.

The deadline for submission of abstracts is Friday 11th February 2011. Successful applicants shall be notified no later than 2 weeks of this date.

Justice John Hedigan of the Irish High Court, and former Judge of the European Court of Human Rights, will deliver the keynote address and Mr Michael O’Boyle, Deputy Registrar of the European Court of Human Rights will speak at the event.

We regret that we are not in a position to offer financial support for travel to the conference or for accommodation.

Abstracts should be submitted to Kanstantsin Dzehtsiarou and Alan Greene at ucd.echr.conference@gmail.com

Monday 29 November 2010

New issues IAEHR Journal and HRLR

Two human rights journals have just released their newest issues. Please find an overview here of the articles that relate to the ECHR. The latest issue of the Human Rights Law Review (vol. 10 , no. 4 , 2010) includes:

* Thérèse Murphy and Gearóid Ó Cuinn, 'Works in Progress: New Technologies and the European Court of Human Rights':

A field—new technologies and human rights or, more broadly, law and technology—is in the process of being framed. Should the European Court of Human Rights be seen as part of that process? To find out, we searched the Court's case law using HUDOC, a database on the Council of Europe website which contains both judgments and admissibility decisions. We entered 155 keywords, all in English, and in this article we report and analyse what we found. The overall conclusion is twofold: first, it is too early to attempt a complete characterisation of the Court's position on new technologies; and second, the Court is however ‘one to watch’.
The just published latest edition of the Inter-American and European Human Rights Journal (vol. 2, no. 1-2, 2009), a bilingual English/Spanish-language journal, includes:

* Dirk Voorhoof, 'Freedom of Expression under the European Human Rights System'
* Giovanni Bonello, 'Evidentiary Rules of the ECHR in Proceedings Relating to Articles 2, 3 and 14 - A Critique'
* Egbert Myjer and Peter Kempees, 'Notes on Reparations under the European Human Rights System'
* Laurence Burgorgue-Larsen, 'Interim Measures in the European Convention System of Protection of Human Rights'

Friday 26 November 2010

Interpretative Authority of ECtHR Judgments

A strong plea for the interpretative authority of Europea Court judgments. That is what PACE rapporteur Christos Pourgourides delivered last month at a conference in Skopje. He convincingly argued that one of the key ways to prevent repetitive applications to the Court and to prevent human violations in general is for state parties to take the res interpretata of the Court's judgments more seriously, even if it concerns judgments relating to other countries. He mentions two situations to illustrate his point:

The Court held as early as in 1979, in Marckx v. Belgium, that children born out of wedlock must not be discriminated. French law was similarly discriminatory. But the necessary changes were made only after France herself was condemned by the Court in the case of Mazurek v. France, in 2000! It was obvious, already back in 1979, what the Court’s position would be. Twenty years lost for the victims of such discrimination, and many years of unnecessary litigation before the Court in Strasbourg.

The second example concerns my own country: whilst the Court had already decided in 1981, in Dudgeon v. the United Kingdom, that homosexual acts between consenting adults must not be criminalised, Cyprus waited until the Modinos v. Cyprus judgment in 1993 to finally decriminalise such acts – and even then, I recall it well,
without much enthusiasm.
The speech is available online here. The speech is followed by a very informative compilation of background materials on the interpretative authority of the judgments of the European Court of Human Rights, with key extracts from relevant cases, but also a very elaborate overview of examples of national laws and domestic court cases which illustrate acceptance of res interpretata of the Strasbourg Court. Highly recommended!

Thursday 25 November 2010

Report on Implementing Regional Human Rights Decisions

The NGO Open Society Justice Initiative has just published a new report online, entitled 'From Judgment to Justice. Implementing International and Regional Human Rights Decisions'. It focuses on challenges of implementation in respect of four human rights systems: the Strasbourg system, the Inter-American and African ones and the UN Human Rights Committee. For the ECHR system the report concludes that although compliance is relatively high - especially in relation to the payment of compensation - the more general measures which are often required to implement a judgment are much more problematic. Many of the recommendations focus on a more effective approach in tackling systemic problems. The report calls for greater synergies between Council of Europe institutions, a further refinement and clarification of the pilot judgment procedure and a more robust monitoring on the national level both by parliaments and by national human rights institutions. This is the abstract:

Despite unquestionable achievements over the past 25 years, the Inter-American, European, African, and UN systems all face tremendous obstacles in translating their verdicts into change on the ground. In many cases, landmark decisions have not yet yielded meaningful reform.

From Judgment to Justice, a report launched this week by the Open Society Justice Initiative, reviews the implementation of judgments across the world's four human rights systems. Working from empirical data as well as interviews conducted with court personnel, human rights advocates, and academics, authors David C. Baluarte and Christian M. De Vos provide a comprehensive review of the dynamics involved in putting international commitments into practice. The report provides recommendations tailored to each system, while also pulling together common points of concern in its final chapter.

Wednesday 24 November 2010

Voting Rights for Detainees: Reform Ordered

A blanket ban on voting rights for detainees in the United Kingdom, in place since 1870, might change into a more nuanced system of assessing which prisoners get the right to vote. Yesterday, in the pilot judgment of Greens and M.T. v. the UK, the European Court of Human Rights decided that the United Kingdom had violated the rigth to free elections (Article 3 of Protocol 1 to the European Convention). The case was legally simple, in the sense that the Grand Chamber had ruled over five years ago in the case of Hirst v the United Kingdom (No.2) that the blanket ban violated the Convention.

The interesting aspect of the Greens and M.T. case is the consequences the Court attaches to this, after five years in which British governments dragged their feet on this, in spite of calls from the Committee of Ministers of the Council of Europe and more importantly of their obligations under the ECHR. The Court noted that it was a cause for regret and concern that no action had been undertaken by the British government to reform the legislation in question. It stressed that the violation in this case was a direct result of the British failure to comply with the Hirst judgment. Moreover, this lack of compliance does not only touch upon the rights of detainees, but also threatens the effectiveness of the Strasbourg system, not in the least because around 2,500 similar applications have been sent to the European Court. Each election in the UK will give rise to a new flood of such applications. Thus the Court in this pilot judgment decided to put more pressure on the United Kingdom. It set out a time table under Article 46 of the Convention (on the binding force of Strasbourg judgments): the UK needs "to introduce legislative proposals" to amend the existing laws within six months after the judgments becomes final (which in effect means nine months of time in total). For the subsequent steps, the Court refers to the Committee of Ministers: "with a view to the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst according to any time-scale determined by the Committee of Ministers." Simultaneously, the Court "freezes" the assessment of all pending or newly incoming cases from the UK on this issue, also indicating that relief should come from a change in law, not from awards distributed by the Court. For the applicants in this case, declaratory relief is sufficient (Greens and M.T. got no compensation for any non-pecuniary damages). Although the two applicants here still got compensation for costs made in the proceedings, even that will not be likely, according to the Court. A clear signal that applicants should no longer try their luck in Strasbourg on this matter. If the UK changes its laws in compliance with Hirst, the Court will strike all such similar cases off its list.

It is very important to note that this and previous Court judgments do not entail that all prisoners should be given voting rights under all circumstances (and thus contrary to what some in the British press mistakenly report. See e.g. here). Rather the Court's case-law points out that a blanket ban - which is general, authomatic and indiscriminate - goes too far and that a more individualised assessment of when prisoners can vote is necessary. In the Hirst case the Court indicated that a number of factors could be relevant in that respect, such as the length of the sentence, the nature or gravity of the offence, and the individual circumstances of the detained person. In the later case of Frodl v Austria, the Court specified that such an individualised decision needed to be taken by a judge and that (para. 32 of Frodl) "there must be a link between the offence committed and issues relating to elections and democratic institutions."

Although Prime Minister Cameron has been reported to get nauseous fom the thought of giving prisoners the right to vote, there seems to be a growing understanding in British ruling circles that there is no way to legally circumvent the Strasborug dictum - see here. See also the commentary on the UK Human Rights Blog.

Tuesday 23 November 2010

Russian Constitutional Court President Very Critical of Strasbourg Court

The president of Russia's Constitutional Court, Valery Zorkin, uttered very critical remarks at a forum in Saint Petersburg last Saturday. According to various press agencies (Itar Tass and Reuters) and newspapers (Kommersant) he indicated that Russia could withdraw from the jurisdiction of the European Court of Human Rights. This follows statements by the Constitutional Court that it wants to introduce mechanisms to protect national sovereignty which would permit national authorities not to execute ECtHR judgments if they would be contrary to the Russian Court's judgments. All of this takes place after criticism in Russia of the Strasbourg Court's findings of human rights violations in a whole series of cases in the last few years and more specifically the recent judgment in Markin, a case in which the European Court found that Russia violated the ECHR by discriminating against male soldiers asking for parental leave, a case originally decided by Mr Zorkin's Constitutional Court. In addition, the judgment in the politically very sensitive Yukos / Khodorkovski / Lebedev case is forthcoming.

One may add, that anonymous sources within the Kremlin immediately played down Zorkin's remarks and qualified it as a "backwards step".

Thursday 18 November 2010

PACE Report Points Out Biggest ECHR Implementation Culprits

Yesterday, the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe (PACE) adopted its newest (7th) report on the implementation of the judgments of the European Court of Human Rights, drafted by Mr Christos Pourgourides. The report fits in with the increasingly active role of PACE in the last few years to supplement the work of the Committee of Ministers, which formally supervises the implementation of the Court's judgments on a case-by-case basis. The Assembly rather focuses on large-scale issues and thus highlights in this report nine countries which show "extremely worrying delays in implementation": Bulgaria, Greece, Italy, Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine. One may note, by the way, that these delays are all the more problematic since this list of countries includes all the countries from which most applications come to Strasbourg. A number of outher countries are also in the 'danger zone' and deserve attention: Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Georgia and Serbia.

Specifically, the following grave problems endangering the rule of law are discussed in the report:

* excessive length of judicial proceedings leading to ineffective protection of a wide range of substantial rights (endemic notably in Italy);
* chronic non-enforcement of domestic judicial decisions (widespread, in particular, in the Russian Federation and Ukraine);
* deaths and ill-treatment by law enforcement officials, and a lack of effective investigations thereof (particularly apparent in the Russian Federation and Moldova) and;
* unlawful detention and excessive length of detention on remand (in Moldova, Poland, the Russian Federation, and Ukraine).
Less problematic, but also mentioned are Portugal and the United Kingdom, where the rapporteur sees some slow but positive developments. The very detailed report is an invaluable resource to see how implementation fares in some of the more problematic state parties to the ECHR.

Wednesday 17 November 2010

The Court's New Priority Policy

The high tide of cases reaching Strasbourg is a well-known and worrying fact to Strasbourg watchers and others. One of the creative ways to deal with the current backlog of far over 100,000 cases is to prioritise applications instead of dealing with them in the chronological order in which they reach the Court. The first step was taken in June 2009 when the Court amended its Rules of Court. Ever since, Rule 41 (on the order of dealing with cases) reads as follows:

In determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it. The Chamber, or its President, may, however, derogate from these criteria so as to give priority to a particular application.
Even before that time it had been possible to prioritise cases (one may think of Pretty v. the United Kingdom in 2002, a case in which the applicant was terminally ill). After the amendment of the Rules of Court, the Court started to develop criteria and these have now been made publcily avaialable on the Court's website in a document aptly entitled 'The Court's Priority Policy'. It indicates clearly the main rationale for the priorities given: some very serious human rights problems remained on the stack of cases for too long. By dealing with those with priority, the Court hopes not only to help the applicants concerned, but also - by addressing those particular human rights problems - to prevent more applications of the same kind. These are the seven categories of priority which the Court has established:

I. Urgent applications (in particular risk to life or health of the applicant, other circumstances linked to the personal or family situation of the applicant, particularly where the well-being of a child is at issue, application of Rule 39 of the Rules of Court).

II. Applications raising questions capable of having an impact on the effectiveness of the Convention system (in particular a structural or endemic situation that the
Court has not yet examined, pilot-judgment procedure) or applications raising an
important question of general interest (in particular a serious question capable of
having major implications for domestic legal systems or for the European system), inter-State cases.

III. Applications which on their face raise as main complaints issues under Articles 2, 3, 4 or 5 § 1 of the Convention (“core rights”), irrespective of whether they are
repetitive, and which have given rise to direct threats to the physical integrity and
dignity of human beings.

IV. Potentially well-founded applications based on other Articles.

V. Applications raising issues already dealt with in a pilot/leading judgment
(“repetitive cases”).

VI. Applications identified as giving rise to a problem of admissibility.

VII. Applications which are manifestly inadmissible.
Chambers of the Court or the Court's President can still deviate from this priority list if need be, but these will be the guiding criteria for the years to come. The Court has internally set up a working group to monitor how this works out in practice.

The Court has already indicated that one of the side-effects of this new policy could be that the output of the Court decreases; dedicating more time to serious and complicated cases means less time for easier, more quickly disposable cases. Already now, judges in the Court spend the overwhelming amount of their working time on the more serious cases (the circa 5% that is both admissible and non-repetitive). In practice this could mean that a great number of cases without priority (those in the lowest categories) will remain on the docket virtually eternally, unless the root causes of the Court's problems are addressed. One may indeed note that two rights which take up a very large chunk of the applications and judgments currently (the right to a fair trial and the right to property) do not figure in the priority list. Such issues will be dealt with on a more systemic level through pilot judgments but less and less so through series of individual decisions and judgments - ironic as this may be especially for people complaining of the right to a fair trial within a reasonable time.

The right to individual application and the Court's assessment of all cases was an achievement which, amongst others through pressure of NGOs, was saved in the Interlaken reform process. But the prioritising policy shows that the constitutionalisation process is in a way also still ongoing. It is not a formal pick-and-choose policy as some national constitutional courts apply, but de facto it might turn into that, since non-prioritised cases may remain on the stack "to be dealt with later" indefinitely. While this is certainly unsatisfactory in many regards, I think that given the circumstances the Court implicitly but rightly places the responsibility for that on the state parties. It will itself focus on the cases that really concern the worst human rights violations and those issues that are systemic or touch upon many European countries. This is a wise choice: it enables the Court to make a difference where it matters most and where it impacts most and in that way may help to retain and rebuild it's public image, which in recent years has come under attack of both states and public opinion in several countries. Really crucial cases will not be allowed to get lost in the mailroom or the corridors and archive rooms of the Court. A process to be followed closely.

Tuesday 16 November 2010

Protecting the Right of Individual Application

In recent years there have been various interferences with individuals trying to bring their case to the European Court of Human Rights. Applicants in detention have been barred from contacting a lawyer, pressure has been put on applicants, or proceedings have even been started on the national level against applicants' legal representatives in order to hamper the application to Strasbourg. Apparently, this development has become so worrysome, that the Committee of Ministers of the Council of Europe felt the need to once again stress the duty of state parties to the ECHR to respect and protect the individual right of application in a resolution adopted last week. The Ministers note "with concern that there have been isolated, but nevertheless alarming, failures to respect and protect the right of individual application (such as obstructing the applicant’s communication with the Court, refusing to allow the applicant to contact his lawyer, bringing pressure to bear on witnesses or bringing inappropriate proceedings against the applicant’s representatives), as found in recent years by the Court." The Ministers call upon the states (read: themselves) to refrain from such pressure on applicants, to to protect them, to comply with the interim measures of the Court in this respect, and to investigate all cases of such alleged interferences. The Committee of Ministers indicates that it will examine with urgency such cases in which the Court found a violation of the right to individual application in this respect. Increased vigilance, in other words.

Monday 15 November 2010

ECHR and EU in UK and Ireland

Cian C. Murphy of King's College in London has published a paper on SSRN entitled 'Ireland & the UK in the European Union and European Convention on Human Rights: A Tale of Two Island Legal Systems?'. It is part of this book: The National Judicial Treatment of the ECHR and EU Laws: A Comparative Perspective by Giuseppe Martinico and Oreste Pollicino (eds.) (Europa Law Publishing, 2010). This is the abstract:

This paper critically examines the operation of European Union (EU) law and the European Convention on Human Rights (ECHR) in Ireland and the UK. Ireland has a colourful history in both the EU and ECHR. Since its accession in 1973, Ireland has provided the EU with both legal and constitutional challenges. Furthermore, while it only transposed the Convention into domestic law in 2003, Ireland offered the European Court of Human Rights (ECtHR) its first case, one of its few interstate cases, and the opportunity to offer its most recent thoughts on the relationship between EU law and the ECHR. The UK’s relationship with the EU has been fraught with acrimony. Similarly, despite the leading role played by Britain in the Council of Europe, the eventual implementation of the ECHR in British law in 1998 has been portrayed as European interference with the UK legal system. Nonetheless, the peculiar nature of the UK legal system and its interaction with both EU and ECHR law makes for an interesting case study. This report critically compares Irish and British implementation of European law. Section 2 examines the legal effects of EU membership in the two jurisdictions. Section 3 considers Irish and UK membership of the ECHR and implementation of the Convention in the domestic law of the two states. In section 4, judicial application of European law in the two jurisdictions is critically compared. Section 5 draws the various strands together to conclude that Irish and British implementation of both forms of European law remains idiosyncratic. While European law has undoubtedly affected the two legal systems, its influence continues to be filtered through the unique constitutional arrangements of the two states.

Thursday 11 November 2010

New Articles on ECHR

Two new articles on the European Convention on Human Rights have been published. First on the right to life in the European Journal of International Law (Vol. 21-3, 2010), Juliet Chevalier-Watts has written 'Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?'. This is the abtract:

Articles 1 and 2 of the European Convention on Human Rights, when read together, require a proper and adequate official investigation into deaths resulting from the actions of state agents, both from the use of lethal force, and also in situations arising from the negligence of agents that leads to a death. The article considers the extent of the obligation to carry out an effective investigation since its explicit recognition by the European Court of Human Rights in the case of McCann and Others v. United Kingdom. The article assesses the jurisprudence of the duty to investigate in order to determine whether the obligation is now placing too onerous a burden on member states in order to comply with their duties under the Convention, or whether the duty does indeed secure the right to life, as is intended. To assess the original proposition, the article considers the jurisprudence of the duty to investigate in relation to the following applications: early forays into the application of the duty; fatalities arising from non-lethal force; the influential quartet of cases arising out of the Northern Ireland troubles; recent judgments concerning cases arising out of the conflict in Chechnya; and finally through to a critical review of the effectiveness of the European Court.
Secondly, in the Nordic Journal of International Law (Vol. 79-4, 2010) Ian Bryan and Peter Langford have written 'Impediments to the Expulsion of Non-Nationals: Substance and Coherence in Procedural Protection under the European Convention on Human Rights.' This is the abstract:

This article offers a critical assessment of the interpretative positions adopted by the European Court of Human Rights as to the applicability of Convention rights and freedoms to the deportation of “aliens” resident in the territory of a Contracting State. The article considers inconsistencies in the Court's jurisprudence and argues that these inconsistencies are a result of the characterisation of deportation proceedings as administrative events. The authors also explore the nature of Contracting States' deportation procedures and examine key features of the procedural guarantees afforded to non-nationals under the Convention and its Protocols. In addition, the authors consider the extent to which Convention notions of due process and natural justice are deemed germane to deportation proceedings. The article contends that disparities in the procedural protections accorded to nationals when compared with resident non-nationals conflict with the purpose of the European Convention on Human Rights are an avertable consequence of the primacy of State sovereignty.

Tuesday 9 November 2010

Court Reform in a Fairy Tale

At the occasion of the retirement from the European Court of Human Rights of the German judge Renate Jaeger, a small and original analysis of the Court's current problems and predicaments has been written by Egbert Myjer and Peter Kempees, in the form of a fairy tale. It's entitled 'Jack and the Solemn Promise. A Cautionary Tale.' It has been published with Wolf Legal Publishers (ISBN 978-90-5850-574-3) and starts like this:

Once upon a time, not so very long ago (although it may seem ages ago to young people who have grown up with mobile telephones, pizza delivery services, music downloads and social networking web sites), there was an inhuman war. Of course, all wars are inhuman, but this one was really horrible, worse than anything anyone could remember.
An enjoyable read!

Monday 1 November 2010

Two New Articles on ECHR

In the week in which the European Convention on Human Rights will turn 60, two recent articles address two very different aspects. The first goes into the fundamental question to what extent the Court can be said to be democratically legitimate. It was writted by Andreas Føllesdal in the Nordic Journal of International Law (Vol. 27-2, 2009) and is entitled 'Why the European Court on Human Rights Might Be Democratically Legitimate: A Modest Defense'. This is the abstract:

According to critics in some of the Nordic countries the bodies that monitor and adjudicate international human rights courts are undermining their own legitimacy by adhering to undemocratic practices. The strongest normative case against the judicial review that such bodies perform could be directed at the European Court on Human Rights (ECtHR), which monitors many wellfunctioning democracies. Section 1 lists normative objections to judicial review in general. Section 2 sketches a normative defense this practice, and Section 3 presents some relevant aspects of the ECtHR. Section 4 returns to consider the various objections. The mandate, composition, institutional environment and mode of operation of the ECtHR renders it immune to several of these criticisms. The conclusion identifies some objections that merit further attention, both for empirical research and for normative analysis.
Secondly, the European Constitutional Law Review (vol. 6, No. 2, 2010) features an article on the Sejdic and Finci judgment of the Court, entitled 'The Strasbourg Court on the Dayton Constitution: judgment in the case of Sejdic and Finci v. Bosnia and Herzegovina', authored by S. Bardutzky.

Thursday 28 October 2010

Scottish Practice Contrary to Salduz Requirements

The Supreme Court of the United Kingdom has recently issued its decision in the case of Cadder v. H.M. Advocate. It concerns the compatibility of Scottish law with the Salduz v. Turkey judgment of the Grand Chamber of the European Court (see my earlier short post here). Thusfar, Scottish police officers were allowed to question suspects for six hours before they were given access to a lawyer. In the Cadder case the Supreme Court decided, on the basis of Salduz, that this was contrary to the requirements of the ECHR. For the judgment itself plus a short introduction, see this recent post on Lallands Peat Worrier (thanks for the reference!).

Wednesday 27 October 2010

Winter School on ECHR and Migrants

The University of Bologna - the oldest in Europe - is organising a 'Winter School' on 'The European Convention of Human Rights: mechanism of protection and rights of migrants' from 10 to 14 January 2011. According to the organisers, the course aims to focus on two topics: The functioning mechanism of the European Convention of Human Rights (submission of an application, conditions of admissibility, Court’s evaluation, judgments’ effects, surveillance mechanism on judgments’ implementation); The role of the ECtHR on the protection of migrants and of people without a nationality (arts. 2, 3, 8 ECHR). More information on registration can be found here and the full programme can be found here.

Friday 22 October 2010

Case Note on Demopoulos Decision

Over at Terra Nullius, a specialised blog on housing, land and property (HLP) rights, Rhodri Williams has published a case note on the Demopoulos v. Turkey decision, which was issued earlier this year by the European Court on property of persons in Northern Cyprus (see my earlier post here). The case note was published in Volume 49 No. 3 of International Legal Materials. A sharp analysis of the problematic aspects of this decision.

Thursday 21 October 2010

UN Sanctions Case Goes to Grand Chamber

The idosyncratic case of Youssef Moustafa Nada v Switzerland, an application brought to the European Court two years ago, was relegated to the Grand Chamber of the Court this week. The ordinary Chamber which was to deal with the case has relinquished jurisdiction. The complaint relates directly to the United Nations sanctions regime, set up by the Security Council, against the Taliban and Al-Qaeda. Nada was one of the persons on the sanction lists and lived in a small Italian enclave in Switzerland. Since that country implemented the UN sanctions by refusing access of people on the list to Swiss territory, Nada was de facto locked up in the enclave. These are the facts and Nada's complaints (from the press release of the Court):

The applicant, Youssef Moustafa Nada, is an Italian national who was born in 1931 and lives in Campione D’Italia, an Italian enclave of 1.6 km in the Swiss Canton of Tessin.

On 15 October 1999 the United Nations Security Council adopted Resolution 1267 (1999) providing for sanctions against the Taliban and setting up a Committee responsible for their implementation. On 19 December 2000, by the adoption of Resolution 1333 (2000), the sanctions regime was extended to include Osama bin Laden and al-Qaeda. In its resolutions, the Security Council called upon the Committee to maintain a list of individuals and entities associated with bin Laden and al-Qaeda.

Under those resolutions, on 2 October 2000 the Swiss Federal Council adopted an order laying down measures against individuals and entities associated with Osama bin Laden, al-Qaeda or the Taliban (the “anti-Taliban order”). The order provided for the freezing of assets and financial resources of those concerned, and prohibited the provision to them of funds or financial resources. It further restricted their entry into or transit through Switzerland.

On 9 November 2001 Mr Nada and a number of organisations associated with him were placed on the list of the United Nations Committee. On 30 November 2001 those names were added by the Swiss authorities to the list of people concerned by the anti-Taliban order.

On 22 September 2002 Mr Nada requested the deletion from the list of his name and those of the organisations associated with him, mainly because the Swiss investigation against him had been discontinued.

However, his request and subsequent administrative appeals were rejected. The Federal Council referred his case to the Federal Court, considering that the restrictions on Mr Nada’s property rights had, under the European Convention on Human Rights, to be assessed by an independent and impartial tribunal. On 14 November 2007 the Federal Court dismissed Mr Nada’s appeal. It found that Switzerland had acted in accordance with its international obligations. It nevertheless requested the Swiss authorities to ascertain whether it was possible, having regard to their international obligations, to waive the measure barring Mr Nada from entering the country. As he lived in a small Italian enclave in Switzerland he found himself virtually under house arrest. Mr Nada has stated that following that judgment he has asked the Swiss authorities several times to let him enter or pass through Switzerland, but without success.

Relying on Article 5 §§ 1 and 4 (right to liberty and security), Mr Nada complains that he was deprived of his liberty by the Swiss authorities and had no effective procedure through which to challenge the restrictions on his freedom of movement. He further takes the view that the measures at issue were contrary to Article 8 (right to respect for private and family life). Lastly, he alleges that there has been a violation of Article 13 (right to an effective remedy), in that there was no remedy available in Switzerland by which he could have complained of a breach of Articles 5 and 8.
In many respects this promises to be an interesting case. For one because judicial institutions of the European Union have dealt with similar issues in the past few years, but this is a complaint directed against a non-EU country. Secondly, the ordinary chamber had already allowed France and the United Kingdom to intervene as third parties - one may presume that as permanent Security Council members they have a high interest at stake here. Finally, one could ask whether the Court will really go into the merits of the case or simply declare the case inadmissible as it has done before when state parties act to implement UN Security Council resolutions (the Behrami and Saramati decisions).

See the full press release here. To be continued!

Tuesday 19 October 2010

60 Years ECHR Website

In a few weeks from now, on 4 November, it will be exactly 60 years ago that the European Convention on Human Rights and Fundamental Freedoms was signed in Rome (it entered into force three years later). To celebrate this, the Court has launched a special website. It provides an accessible overview of the key rights and features of the Convention for a wider audience. Full of information sheets, videos, landmark judgments, information per country and much more. Excellent to explain to your familiy and friends what you are actually doing when you work, study or do research in the field of European human rights law!

Friday 15 October 2010

Non-Discrimination, the Military, and Parental Leave

Equal rights for fathers and mothers, should they exist even in the army? That was at issue in the recently decided case of Konstantin Markin v. Russia. It is a case on gender roles in childcare and on non-discrimination in issues of parental leave. The applicant was a father responsible for raising three young children, including a new-born baby, after a divorce. Since he was a military serviceman, he had to ask for permission to take time to care for them for. His request for a period of leave of three years was rejected, since only women were allowed such long periods of parental leave from the military. When he appealed against this in court, the national judges emphasized the special role of women associated with motherhood in order to justify the difference made on the base of sex. They also pointed at the very limited participation of women in military service - to entail that parental leave for them did not endanger any public interest.

The facts of the case gave the Court a chance to issue a judgment on parental leave and the military. It approached the case from the perspective of the right to family life (Article 8 ECHR) in conjunction with the prohibition of discrimination (Article 14). The Court held that Article 8 does not impose any positive obligations on state parties to create parental leave possibilities or related allowances, but that if they did, they should do so in line with the probihition of discrimination. The denial of parental leave to the applicant was based on a combination of sex and military status. especially on the first grounds states always have to put forward very weight reasons to justify differneces in treatment. Most conspicuously, the Court went into the reasoning of russia's Constitutional Court on the roles of parents. The European Court held (para. 48):

The Court is not convinced by the Constitutional Court’s argument that, as far as parental leave is concerned, the different treatment of male and female military personnel is justified by the special social role of mothers in the upbringing of children (see paragraph 19 above). It observes that in contrast to maternity leave and associated allowances, which are primarily intended to enable the mother to recover from the fatigue of childbirth and to breastfeed her baby if she so wishes, parental leave and the parental leave allowances relate to the subsequent period and are intended to enable the parent to stay at home to look after the infant personally. Whilst being aware of the differences which may exist between mother and father in their relationship with the child, the Court considers that, as far as the role of taking care of the child during this period is concerned, both parents are “similarly placed” (see Petrovic, cited above, § 36).
The Court pointed to a growing consensus in Europe on equal rights relating to parental leave, to the effect that Russia could no longer rely on a lack of common European standard. Then the Court noted (para. 49): " Nor can the reference to the traditional perception of women as primary child-carers provide sufficient justification for the exclusion of the father from the entitlement to take parental leave if he so wishes." Old prejudices can thus no longer sustain current practices in this matter. In Russia, the difference at stake relates only to military service personnel (for civilians equal rights exist). Even if in general human rights of the military can be restricted to a larger extent than in other situations, when they relate to Article 8 the margin for states becomes narrower. In this case, Russia had failed to show that allowing parental leave for men would truly endanger the effectiveness of the military (no statistics or other proof) and thus the reasoning of Russia, according to the Court, was based on "a pure assumption" (para. 57). In conclusion, the Court found a violation of Article 14 taken together with Article 8.

It is notable that although this was the first time such a case (parental leave in the military) was decided by the Court, it did emphasize that it concerned a wider problem than the individual case at hand. After all, the discrimination flowed from legislation. Thus the Court recommended under Article 46 ECHR (states have to abide by final judgments of the Court) that Russia amend the relevant law in line with the principles developed in the judgment.

The judgment was arrived at with a vote of six against one: only the Russian judge dissented. Judge Kovler was of the opinion that the reasoning of Russia's national judiciary, which placed more emphasis on the effectivenss of the military (which necessitated placing restrictions on servicemen), was more convincing than the Court's own argumentation. In addition, he concluded that this was an isolated case and that Russia would not need to take general measures. It is always a pity if only the national judge dissents as that might negatively affect the authority of the Court's judgment in the country concerned.

Pride and prejudice - Jane Austen could write another novel on it!

Monday 11 October 2010

An Expert Advisory Panel for Selection of Judges

Last Friday the Parliamentary Assembly of the Council of Europe (PACE) welcomed the call of the Court's president, Costa, to set up an expert panel which could advise state parties about the lists of three candidate judges which they plan to submit to the Assembly. The Assembly once again emphasized the need for "rigorous, consistent, fair and transparent national selection procedures." This has been a key concern of the assembly and of a coalition of NGOs in the run-up to the Interlaken reform meeting of earlier this year. The background report, drafted by Ms Renate Wohlwend of Liechtenstein, can be found here. It includes the letter by Costa to PACE of 9 June 2010 in which the idea was launched. He indicated would urge the Committee of Ministers

to set up rapidly a panel along the lines proposed by the Wise Persons and the Secretary General. Such a panel, which should be composed of senior figures from a relevant background, would intervene before a list was submitted to the PACE by the contracting party so as not to interfere with the PACE’s Convention responsibilities in this area. Moreover, its role would be advisory; in other words it would make recommendations to the nominating State including, as necessary, proposals to modify the list. Such a Panel could be set up without amending the Convention by a decision of the Committee of Ministers.
Costa also refers to the importance of this in relation to the accession of the EU to the ECHR:

One of the critical issues in this context will be the future relationship between the Court of Justice of the European Union and the Strasbourg Court. For that relationship to function it must be based on mutual respect. Since the entry into force of the Lisbon Treaty, appointments to the EU courts are subject to the opinion of an independent panel (Article 255 of the Treaty on the Functioning of the European Union). It is true that the procedure under the Convention is not strictly comparable to the EU appointment process in view of the involvement of the Parliamentary Assembly of the Council of Europe and the additional guarantee which that provides.
After controversies regarding the lists submitted in respect of Malta, Ukraine, Italy, and Greece in the recent past, amongst others, this would seem to be a welcome development to ensure a high quality of judges. I will keep you posted on possible further developments on the proposed panel.

See also this information document of the Committee on Legal Affairs and Human Rights.

Thursday 7 October 2010

Working Paper on EU Accession to ECHR

Tobias Lock of University College London has posted a working paper on SSRN on the upcoming accession of the European Union to the ECHRr. Currently, negotiations on this are ongoing. This is the abstract of the working paper, entitled 'Accession of the EU to the ECHR: Who Would Be Responsible in Strasbourg?':

Chief among the many issues, which an accession of the EU to the ECHR, will raise, is the question of the appropriate respondent before the European Court of Human Rights in cases involving EU law. EU law is typically implemented by the Member States. Against whom should an individual address their individual complaint in a case where they argue that a violation of the ECHR can be found in EU law: the EU or the Member State? This paper discusses various options and proposals made in the wake of the negotiations, which started in July 2010. Both actions and omissions will be dealt with. It is argued that a solution must not only protect the autonomy of EU law but at the same time offer an effective remedy for the individual.

Wednesday 6 October 2010

New Estonian and Greek Judges

Yesterday, the Parliamentary Assembly elected two new judges to the Court, in respect of Estonia and of Greece. The new Estonian judge will be Ms Julia Laffranque, who won an absolute majority of 116 votes, more than her two opponents taken together. Her nine-year term of office will in principle start on 1 January 2011. Ms Laffranque (1973) is currently justice at the supreme court of Estonia and associate professor at the University of Tartu. She was once an ad hoc judge in 2006 at the European Court in the case of Harkmann v. Estonia.

In respect of Greece a very well-known human rights lawyer was elected: Mr Linos-Alexander Sicilianos (1960), again with more votes than his opponents combined. His nine-year term of office will commence on 18 May 2011. He has a few times litigated cases in Strasbourg, is an academic as well, and among many other functions has been a member of the UN Committee on the Elimination of Racial Discrimination.

Congratulations to both!