Monday, 1 February 2016

ESIL and ECtHR Conference on ECHR and Crimes of the Past

On Friday 26 February, the European Society of International Law (ESIL) together with the European Court Human Rights will organise a conference on 'The European Convention on Human Rights and the Crimes of the Past'. The conference will be held in Strasbourg, at the premises of the Court. The full programme, including both judges from the Court as speakers as well as prominent ESIL members can be found here

Please register before 19 February at; ESIL-ECHR-Conf2016 at echr.coe.int .

Friday, 29 January 2016

Book on Procedural Dialogue in the ECHR System

Earlier this week I had the privilege to participate as one of the external examiners in the public defense of the PhD of Lize Glas at Nijmegen University. She has written a very structured, clear, and thorough study on 'The Theory, Potential and Practice of Procedural Dialogue in the European Convention on Human Rights System', published with Intersentia. This is the abstract:

Dialogue is the new buzzword for the European Convention on Human Rights (Convention) system. judges throughout Europe have welcomed and encouraged dialogue, and references to the notion have become commonplace at conferences and in academic writing. Yet although the buzz has intensified, exactly why dialogue can be of added value is not often examined. Nor do those who rely on the notion usually explain how exactly it can be operationalised in a practical sense. 

This volume dissects the common-sense realisation that dialogue adds value to the Convention system, within which the State Parties, the Court, the Committee of Ministers (Committee), the Parliamentary Assembly (Assembly), and the Commissioner for Human Rights (Commissioner) interact. The question of why dialogue should occur is answered through an account of the way the system is established and how it functions, and of the developments and reform it has experienced. 

The second aim of the volume is to establish whether Convention dialogue does indeed live up to its potential added value. For this purpose, 26 procedures and ‘procedural steps’ are investigated in the light of ‘indicators of dialogue’. The procedures include third-party interventions, the pilot-judgment procedure, and the Committee’s Human Rights meetings. Both the procedures’ dialogic potential on paper and their ‘dialogicness’ in practice are assessed, based in part on interviews with inter alia the Court’s judges, agents representing the states before the Court, and persons monitoring the execution of the Court’s judgments. 

This volume will be of use to those who are interested in the notion of (Convention) dialogue and its theoretical underpinnings, and those who would like to know more about Convention-related procedures, the execution of the Court’s judgments, and the role that the Assembly and the Commissioner can play in the Convention system. 

Tuesday, 26 January 2016

Report on Impact of ECHR at National Level

The Legal Affairs and Human Rights Department of the Council of Europe's Parliamentary Assembly has prepared an overview document dealing with positive examples of impact of the European Convention within States Parties. The report, entitled 'Impact of the European Convention on Human Rights in States Parties: selected examples', was written at the request of the Parliamentary Assembly's rapporteur, and in collaboration with the Human Rights Centre of the University of Essex. The nice feature of this overview is that it shows an overview per country, not only dealing with recent cases but also those further down in history. In addition, it also shows some instances of how judgments against one country can lead to reforms in another.

Thursday, 21 January 2016

Book on Domestic Application of the ECHR

Eirik Bjorge of Oxford University has published Domestic Application of the ECHR. Courts as Faithful Trustees with Oxford University Press. This is the book's abstract:

Domestic courts are entrusted with the application of the European Convention on Human Rights (ECHR), as faithful trustees of the rights protected in the Convention. 

This book analyses the way in which the domestic courts in the United Kingdom, France, and Germany apply the ECHR and how, applying the Convention, they define their relationship with the European Court of Human Rights. Contrary to what others have contended, the book argues that it is not true descriptively, nor desirable normatively, that the domestic courts approach the ECHR based upon friction and assertion of sovereignty vis-à-vis the European Court. The proper role played by the domestic courts, and the one which they have taken on them to perform in fact, is to apply the Convention in all good faith, building on the principles of the Convention as set out in the jurisprudence of the European Court. But if domestic courts are in a position to apply the ECHR in the first place, it is because the application of the Convention has been entrusted to them by the other organs of the municipal state; in certain cases municipal principles of the separation of powers have an important bearing on domestic interpretation and application of the Convention.

Domestic Application of the ECHR: Courts as Faithful Trustees shows that, through their faithful application of the ECHR, domestic courts can - and do - make a positive contribution to the development of the law of the Convention.

Tuesday, 19 January 2016

Recent ECHR Readings

Some more ECHR readings: the most recent issue of the Human Rights Law Review (vol. 15, no. 4, December 2015) includes:

* Natasa Mavronicola, 'Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying an Absolute Right in a Penal Context'
* Matthew Saul, 'The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments'

In last year's August issue of the European Journal of International Law (vol. 26, no. 3, 2015), we find:

* Lorna McGregor, 'Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR'

And:

* The Polish Government has published a volume, which is also available online here, entitled The Katyn Crime before the European Court of Human Rights. The volume compiles a whole series of relevant documents which formed the Polish contribution to the Janowiec and others v. Russia judgment before the European Court.

Monday, 4 January 2016

Happy New Year and New ECHR Readings

A very good 2016 to all the readers of this blog - may it be one in which human rights will be better respected than last year!

As a start for the new year, please find below a list of newly selected readings related to the ECHR:

The newest issue of the Netherlands International Law Review (vol. 62, no. 3, December 2015) includes two ECHR-related articles:

* Peter McEleavy, 'The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?'

* Jane M. Rooney, 'The Relationship between Jurisdiction and Attribution after Jaloud v. Netherlands'

... some other journal articles:

* Massimo V. Benedettelli, 'Human rights as a litigation tool in international arbitration: reflecting on the ECHR experience', International Arbitration (vol. 31, no. 4, December 2015)

* Stefan Kirchner, 'Outlawing Hate Speech in Democratic States — The Case against the Inherent Limitations Doctrine concerning Article 10 (1) of the European Convention on Human Rights',  Revista de Direito Internacional (vol. 12, no. 1, 2015) 

* Oddný Mjöll Arnardóttir, Cross-fertilisation, Clarity and Consistency at an Overburdened European Court of Human Rights – the Case of the Discrimination Grounds under Article 14 ECHR, Nordic Journal of Human Rights (vol. 33, no. 3, 2015) 

...  and a number of book chapters:

* Paul Lemmens, 'The Contribution of the European Court of Human Rights to the Rule of Law', in: Geert De Baere and Jan Wouters (eds.), The Contribution of International and Supranational Courts to the Rule of Law (Edward Elgar Publishing 2015).

* Wladyslaw Józwicki, 'Protocol 16 to the ECHR: A Convenient Tool for Judicial Dialogue and Better Domestic Implementation of the Convention?' in: Elzbieta Kuzelewska, Dariusz Kloza, Izabela Krasnicka, Franciszek Strzyczkowski (eds.), European Judicial Systems as a Challenge for Democracy (Intersentia 2015) pp. 183-209.

... finally, a number of very interesting posts on EJILTalk!:

* Philip Leach and Alice Donald, 'Russia Defies Strasbourg: Is Contagion Spreading?'

Monday, 21 December 2015

New Factsheets on the ECHR

In the last days before Christmas, the Court has been adding a number of new factsheets on the European Convention of Human Rights to its website. Ever since the first factsheets were published online in 2010, this very useful collection of summaries of judgments, decisions and pending cases, organised around specific themes, the collection has provided guidance to both practitioners and academics, to both students and to the press.  All for the purpose of increasing the effectiveness of the Convention system by making the Court's case-law more known and more widely available. Many of them are now available in range of languages. The five newest ones are:


I wish all readers a very good holiday season and a wonderful 2016!

Thursday, 10 December 2015

Final PluriCourts Conference on Reform of ECtHR and UN Treaty Bodies

On 29 February and 1 March, the University of Oslo is organising the final conference of the large MultiRights project. This 5-year ERC-funded project investigated the legitimacy discussions around international human rights supervisory organs and the reform processes both at the UN and ECHR level. The final conference brings these strands of research together in an event entitled 'Reforms of the Individual complaint mechanisms in the UN treaty bodies and the European Court of Human Rights: Symptoms and Prescriptions – Mutual Lessons?' This is the organisers' conference abstract:

The conference will focus on analyzing and comparing the reform processes of the UN treaty bodies and of the European Court of Human Rights (ECtHR) aiming at finding mutual learning experiences. A particular focus will be given to the following issues:

1) Procedure of selection of members and judges
2) Case load situation
3) Quality of reasoning
4) Margin of appreciation and subsidiarity

Confirmed speakers include:

* Hans-Joerg Behrens, Federal Ministry of Justice, Germany
* Inga Bostad, Norwegian Centre for Human Rights
* Eva Brems, Gent University
* Başak Çali, Koc University
* Andreas Føllesdal, PluriCourts
* Larry Helfer, Duke University
* Martin Kuijer, VU University Amsterdam
* Kjetil Larsen, Norwegian Centre for Human Rights
* Morten Ruud, CoE committee of experts on the reform of the Court
* Kirsten Sandberg, University of Oslo
* Martin Scheinin, European University Institute
* Nora Sveaass, University of Oslo
* Geir Ulfstein, PluriCourts

Tuesday, 8 December 2015

Call for Papers for European Consensus Conference

On 1 June 2016, the University of Portsmouth School of Law, the European University Institute and the McCoubrey Centre for International Law of the University of Hull Law School will be organising a conference on the European consensus (EuC) method of interpretation of the European Court of Human Rights, in Florence. This is the call for papers:

Should prisoners have voting rights? Should terminally ill patients have a right to assisted suicide? Should same-sex couples have a right to marriage or adoption? Few would argue that such legally complex, and morally and politically sensitive issues are subject to universally accepted normative responses. When these questions arise within a European normative framework, the European Convention of Human Rights (ECHR, the Convention) is expected to act as a buffer for idiosyncratic national differences so that common “European” answers and standards of protection can emerge. The ECtHR undoubtedly plays a pivotal role, given its position as the last-word interpreter of the Convention.

Yet, the idea of a court, let alone an international court, establishing “new” rights or significantly expanding the scope and meaning of existing ones is, of course, inherently controversial. Presumably, it is for this reason, and in an attempt to increase its external legitimacy, that the ECtHR has developed the interpretative method of EuC. The Court will only recognise a pan-European -thus common to all 47 signatory parties to the ECHR- standard in sensitive areas of social activity, if it can trace their existence to the (loosely defined) consensus of national jurisdictions, as this is evidenced in the practice of the national legal systems of the ECHR states. If no consensus is diagnosed, states are given wider margin of appreciation. As a result, Europe may legitimately accommodate multiple human rights standards within its normative borders in the spirit of constitutional pluralism.

EuC, and its symbiotic relationship to other interpretative techniques, inevitably raise significant legal, political and philosophical questions. By resorting to EuC the Court may appear to pre-empt or respond to criticisms of judicial activism and claim that evolution in the interpretation of the Convention is, in fact, born out of the practice and implicit will of it signatory parties, which are all sovereign states. But this is hardly sufficient to dissuade concerns regarding the appropriateness of consensus analysis in identifying norms in a “special” area of law, such as human rights. 

The purpose of this two-day international conference is to study the function of EuC, to identify its impact on European human rights law and beyond, and to assess its merits and shortcomings by exploring the following three main strands of analysis.

1. Conceptualisation of EuC: This theme invites contributions that will purport to define and conceptualise EuC, that is to say, to explain what EuC is, how it functions and what its results and consequences are. Papers may discuss the methods (both quantitative and qualitative) that could be used for the conceptualisation of EuC, the theoretical lens (such as constitutionalism, legal pluralism etc.) through which EUC may be explained, the interrelation between EuC and other methods of interpretation (such as margin of appreciation, dynamic/evolutive, systemic integration etc.), how EuC compares to, converges with or diverges from the methods employed by courts in analogous positions (such as regional international human rights courts or national constitutional courts, including the US Supreme Court) and, more generally, any line of enquiry that may contribute to the understanding of EuC. 

2. Evaluation of EuC: This theme invites contributions that aim to critically evaluate EuC, its use, usefulness, appropriateness and normative outputs. We expect analysis in that strand to be primarily normative in nature and attempt to situate EuC in the broader context of questions within Public law, Constitutional law, International law and the Philosophy of Law, purporting to answer who has the authority to make constitutive decisions about civil and political rights in a liberal democracy and how these decisions should be made.

3. The “spill-over” effects of EuC: The last theme invites contributions that will examine the impact of EuC beyond the confines of the ECHR, both within national legal systems and at the inter/supra-national levels. Is EuC (or its altera pars, namely the margin of appreciation doctrine) employed in some shape or form in other legal systems? Could / should other courts in Europe, and first and foremost the Court of Justice of the European Union, make use of EuC? Are European Union (EU) human rights institutions using EuC? 

We are inviting contributions that will engage with these axes of enquiry from any disciplinary perspective. Contributions may adopt a variety of doctrinal or disciplinary approaches, ranging from Jurisprudence and Legal Theory to Constitutional law and from Political Science and Philosophy to European Public law, broadly defined. 

Submissions:
Interested scholars should submit an abstract of no more than 500 words by 31 January 2016. Abstracts should contain the title of the paper, and the name title and affiliation of the author(s). Please send abstracts using the Building Consensus on European consensus conference webpage. If you wish to discuss topics or ideas informally, please contact Dr. Panos Kapotas at panos.kapotas at port.ac.uk.

Speakers will be informed of acceptance of their papers by 12 February 2016, and will be expected to submit a full paper of around 8.000 words (including footnotes) by 1st May 2016. Presentations should be no longer than 20 minutes in duration. The Conference will take place at the European University Institute in Florence, Italy. Speakers will be required to meet the cost of travel and accommodation.

Timeline:
Abstract submission by: 31/01/2016 
Selection of papers by: 12/02/2016 
Submission of papers by: 01/05/2016 

Organising Committee: 
Dr Panos Kapotas, University of Portsmouth, School of Law 
Professor Dennis Patterson, European University Institute
Dr. Vassilis P. Tzevelekos, University of Hull Law School

Friday, 4 December 2015

65 Years ECHR - Jekyll and Hyde in Strasbourg

Exactly one month ago, on 4 November 2015, the European Convention on Human Rights had been in existence for exactly 65 years. In 1950, thirteen Council of Europe Ministers signed the treaty in the Palazzo Barberini in Rome. To commemorate that special moment and all the developments since, my alma mater, the Leiden Law School organised a special event in which all invited speakers were asked to deliver short, column-like, thought-provoking or even comical statements on the Convention and the Court, which were not allowed to exceed five minutes. Among the speakers were the President of the Dutch Supreme Court, the Dutch government agent at the Court, and a number of academic ECHR experts, including yours truly. Several of these contributions have now been published on the website of Leiden Law School and will also be published in the Dutch human rights review (Nederlands Tijdschrift voor de Mensenrechten). This was my own tongue-in-cheek addition to the line-up of speakers:

Jeckyll and Hyde in Strasbourg

Having a split personality is usually not seen as a positive thing. Not for the outside world, and not for the person itself. Robert Stevenson’s novel about Dr Jekyll and Mr Hyde famously showed how the constant shifting between personalities could almost destroy someone. A clear and unified self-perception and image is the preferred style of identity in almost all fields of life and practice, from organizational science to marketing and psychology. Choices have to be made for the sake of clarity and efficiency, but also for the mere functioning of a person or organization it seems.

From this perspective, it is no surprise that the history of the main guardian institution of the ECHR, the European Court of Human Rights, which celebrated its 50th anniversary this month on 4 November, has been marked by an almost constant discussion about the Court’s role and focus. The text of the Convention itself seemed straightforward enough about the function of the Strasbourg Court. It states in Article 19 that the Court was created “to ensure the observance of the engagements undertaken by the High Contracting Parties.” But the ways in which this can be done has led to deep soul-searching within the Court and a lot of debate outside it. Should the Court focus on the role of provider of individual justice in the applications that represent the large bulk of its docket, or should it, for principled or pragmatic reasons take an altogether different, more constitutional role, ruling on principles and structures rather than the nitty-gritty of each individual case?

Looking back at the history of the Court’s work in acting as guardian of the Convention, we can easily discern traces of both. Most judgments have focused on very individualised instances of injustice. But the Court started pointing at structural deficiencies in states early on, for example in Marckx v Belgium. In addition, there have been a few inter-state cases of course. And more recently, in the last decade, state parties have nudged the Court into experimentation leading away, at a slightly larger scale, from dealing with all individual cases. The Convention since Protocol 14 includes a provision in Article 35 on the possibility to dismiss cases in which the applicant did not suffer “a significant disadvantage”. Not every single case merits discussion by the Court anymore. However sparingly used, it departs from the principle of purely providing individual justice to everyone coming to Strasbourg. In a more significant move, the Court has developed the practice of the so-called pilot judgment procedure, starting with the Broniowski v Poland case in 2004.

Pilot judgments are a tool to be used when the Court receives a large number of applications with the same root cause. The Court then selects one, pars pro toto, to deal with all comparable applications. In a pilot judgment, the Court both identifies the structural human rights problem at stake and gives indications to the state concerned that go beyond the individual case. These problems have so far included overly long judicial procedures, property restitution programmes, and prison conditions for example. This in effect gives the Court a quasi-constitutional role through the lens of one case.

Often but not always, comparable cases pending before the Court are “frozen”, leaving these other applicants in the metaphorical cold, or eventually even sending their case back to the national level. For them, the benefits of the Court taking a constitutional role may be quite difficult to see. And sometimes, the pilot judgment procedure yields no direct results at all, as the country at stake resists the Court’s more intrusive, constitutional actions. This was the case in the British prisoners’ voting rights saga. But when the pilot procedure works well, it not only saves the Court work, it also goes beyond the combatting of symptoms and addresses the causes of human rights problems more directly. In those instances the Court weds its individual-justice personality with its constitutional one.


To conclude, the Court has to deal on a daily basis with countries who constantly shift from nice dr Jekylls to evil Mr Hydes and vice versa. The agility with which states oscillate between good and bad human rights practice is obviously not something to be copied by the Court. But I certainly wish for the Court in the coming years to become more at ease with its double identity as both a guardian of individual justice and as a constitutional actor. The two can and should co-exist. The Court itself has called the Convention a living instrument. It is time the Court accepts something else: that it has, itself, a living identity.