Friday, 20 March 2015

Conference on Parliaments and the European Court of Human Rights

Middlesex University and the Helsinki Foundation for Human Rights are co-organising a conference on the interface of national parliaments and the European Court of Human Rights. The conference will be held in Warsaw, Poland, on 12 May from 09:30 to 17:30 (CEST).

Confirmed speakers include (former) ECtHR Judges Myjer and Kaladjieva; Almut Wittling-Vogel (the Representative of the German Federal Government for Matters Relating to Human Rights); Murray Hunt (legal adviser to the UK Joint Committee on Human Rights); Polish Senator Michal Seweryński; Polish Government Agent Justyna Chrzanowska; Başak Çali of Koc University; Daniel Florea of the Romanian Chamber of Deputes sub-committee for the execution of judgments; Christian de Vos of the Open Society Justice Initiative; and Adam Bodnar of the Helsinki Foundation in Warsaw

Registration for the event can be done here.

The two main organising researchers, Philip Leach and Alice Donald, will publish a book on the issue later this year with Oxford University Press, entitled 'Parliaments and the European Court of Human Rights'

Tuesday, 10 March 2015

Conference on 20 years after McCann v UK

This year it will be twenty years since the European Court issued its key judgment in the case of McCann and others v the United Kingdom, finding violations of the right to life in relation to British anti-terrorist operation in Gibraltar. To reflect upon the judgment's aftermath and meaning, dr Stephen Skinner of the Centre for European Legal Studies of the University of Exeter is organising a conference entitled "Lethal Force, Policing and the ECHR: McCann and Others v UK at Twenty". The event will be held at Doughty Street Chambers in London on 25 March. This is the organiser's abstract of the event: 

The workshop will provide an opportunity to reflect on the significance of the landmark 1995 judgment by the European Court of Human Rights in the case of McCann on lethal force and the right to life. A panel of eight specialists will consider the importance of McCann and the effect of human rights standards on the use of lethal force in police operations, in the UK and across Europe. The speakers are Sir Keir Starmer QC, Doughty Street Chambers; Jonathan Cooper, Barrister, Doughty Street Chambers; Daniel Machover, Partner, Hickman & Rose Solicitors; Helen Shaw, Co-Director, Inquest; Det. Ch. Sup Brian Dillon, Metropolitan Police Service; Dep. Ch. Con. Simon Chesterman, National Lead for Armed Policing; Tanja Rakusic-Hadzic, Head of the Criminal Law Co-operation Unit, Council of Europe; and Stephen Skinner, University of Exeter.

Places are limited and only available on a RSVP basis. For further information and to reserve a place please contact the workshop convenor, dr Stephen Skinner ( S.J.Skinner at exeter.ac.uk ).

Tuesday, 10 February 2015

Hutchinson v UK: The right to hope (revisited)…

I am happy to present a guest comment by Dr Kanstantsin Dzehtsiarou of the University of Surrey on the recent judgment of Hutchinson v the United Kingdom:

The European Court of Human Rights has recently delivered a judgment in the case of Hutchinson v the United Kingdom. The applicant in this case is serving a life-long imprisonment sentence. It means that he will never be eligible for an early release. Two years ago in the case of Vinter the Court ruled that such a practice is incompatible with the Convention. This short comment examines whether the new judgment develops or modifies the principles established in Vinter.

Vinter revolution

In July 2013 the Grand Chamber of the European Court of Human Rights delivered a judgment in the case of Vinter and others v the United Kingdom in which it found that life imprisonment without a prospect of release violates Article 3 of the Convention – prohibition of torture, inhuman and degrading treatment and punishment. According to English law some convicted criminals can be sentenced to life imprisonment without parole, and this was considered as a violation of the Convention by the ECtHR. As judge Power-Forde stated in her concurring opinion the prisoners should retain the right to hope. In Vinter, the ECtHR emphasised that the right to hope builds on human dignity and fuels the indispensable purpose of rehabilitation.

The Court found a violation in this case because English law has not offered any real opportunity to review life-long sentence without parole. This was held so, despite the fact that in theory the Secretary of State had a power to release a prisoner in exceptional circumstances. However, these exceptional circumstances were narrowed down by the ‘Lifer Manual’ to those prisoners who were terminally ill or physically incapacitated. As was rightly pointed out by the Court such compassionate release cannot be even considered as a release at all.

In Vinter, the Court did not demand an immediate release of the applicants but only held that a legal system which does not offer effective and clearly defined hope to release violates Article 3 of the Convention.

Vinter is spreading

While the ECtHR decision in Vinter did not immediately help the applicants in that case it had significant implications on the case law of the ECtHR itself. One of those implications is evident in the case of Trabelsi v Belgium in which the Court found that extradition of the applicant to the state where he could face life imprisonment without parole would violate Article 3. The logic in this case is simple: if this type of life imprisonment is a violation of Article 3, then the risk of such treatment in the receiving state should halt the extradition.

Vinter has more fundamental implications. In this judgment the Court emphasised its adherence to the ideals of rehabilitation and reintegration of dangerous criminals. It is hard to comprehend how life-long incarceration could support rehabilitation of such prisoners – life-long sentences remove from both the prisoners and the prison authorities any incentive to reintegrate the inmates into the society. Effectively, a life-long imprisonment means the social death of the inmate. With Vinter in mind, this approach has to change. The Contracting Parties have an obligation to introduce programmes of rehabilitation even for those who serve life imprisonment in order to make release (although, remote) a possibility. A prisoner-centred penitentiary system should leave an inmate a chance to reintegrate into the society.

Finally, Vinter is a logical step forward in liberalisation of criminal punishment. Vinter signalled the dissolution of the social contract according to which the death penalty was replaced by a life-long sentence.

The Hutchinson counter-revolution

3 February 2015 the Chamber of the European Court of Human Rights delivered a judgment in Hutchinson v the United Kingdom. The facts of this case are very similar to the ones in Vinter v the United Kingdom. The Chamber did not find a violation of Article 3 of the Convention as the ECtHR was of the opinion that the English Court of Appeal has now sufficiently clarified the law in relation to release by the Secretary of State in exceptional circumstances.

The ruling of the Court of Appeal was that despite the fact that the ‘Lifer Manual’ was not amended, the Secretary of State is nevertheless bound directly by the decision of the European Court of Human Rights in Vinter. It effectively means that the manual is not good law any more. But which law is good law then is still unclear. If the Secretary of State considered this part of the Lifer Manual as invalid he would arguably have amended it by now. In Vinter the Court found a violation because English law was not sufficiently clear; now English law is arguably even less so. This ruling may prepare the ground for new litigation in England. As it was rightly stated in the dissenting judgment by judge Kalaydjieva, this judgment is pre-mature as it pre-empts effective changes in English law.
Undoubtedly, the United Kingdom enjoys a broad margin of appreciation in regulating its penal policy but this margin has its limits and the Court set clear limits in Vinter. One can therefore argue that the Chamber of the ECtHR in Hutchinson has effectively overruled the judgment of the Grand Chamber in Vinter. This has already been pointed out by English press. If this is the case, then the Court’s attitude to its own precedent does not satisfy the conditions of the rule of law. The principles adopted in Vinter were upheld in Hutchinson but their application was significantly curtailed.

It is highly possible that this case might be referred to the Grand Chamber and then the judgment of the Chamber might be revoked. According to the Convention the parties to the case have 3 months to refer the case to the Grand Chamber. It is up to a panel of 5 judges to accept this case for the Grand Chamber hearing or not. It is likely that this case will be accepted. A similar scenario happened in the Roma school children segregation cases. In DH v the Czech Republic the Grand Chamber held that there was a violation of the anti-discrimination provisions of the Convention. In the subsequent case of Orsus v Croatia the Chamber did not find a violation in the situation significantly similar to DH. The Chamber judgment in Orsus was subsequently overruled by the Grand Chamber. It is quite possible that the same will happen in relation to Hutchinson v the United Kingdom.

In Hutchinson the Chamber has not explicitly overruled the Grand Chamber judgment in Vinter but the Court almost never does this explicitly.  The concept of ‘bad law’ is not well developed in the Court’s case law. According to this concept, the Court should explicitly acknowledge overriding its previous judgment and explain its reasons for doing that. The European Court of Human Rights often leaves this issue ‘up in the air’ not clearly stating if the previous case-law is still valid. Having said that, the doctrine of evolutive interpretation forces the Court to overturn its previous rulings from time to time. The Convention itself does not make the Court adhere to its own precedents which is nevertheless almost always done in practice. It is possible that the Court decides that Hutchinson has only clarified Vinter. This assumption however is highly contestable for the reasons mentioned above.

Game of Courts

Does this case signal a trend in the Court’s case law? Are there going to be more highly politicised judgments in favour of the United Kingdom prior to the 2015 elections? Is the European Court of Human Rights a strategic actor that can sacrifice certain achievements in certain areas of human rights protection in order to save the “Strasbourg project”? The Court’s judgments in the next few months are crucial for answering these questions.


In England, the level of hostility towards the European Court of Human Rights is indeed very high and the behaviour of the United Kingdom towards the Court can determine how influential the Court will be in the following decades. Having said all that, one can wonder what price the Court should and is prepared to pay to have the UK on board. 

Monday, 2 February 2015

Two New Judges Elected to the Court

Last week, two new judges were elected to serve at the European Court of Human Rights. In respect of Bulgaria, the newly elected judge is Yonko Grozev. He received 108 of 187 votes cast. Grozev wil succeed Zdravka Khalaydjieva. With his election the Court seems to gain a solid voice for human rights, at least judging from his CV: he is an active human rights lawyer, having taken cases both to Bulgarian courts and to the European Court itself. In fact, it is fair to say that he has litigated in a large number of the most notable ECHR cases concerning Bulgaria, including AnguelovaHasan and Chaush, Al-NashifNachova, and M.C. In addition, he was a founding member of the Bulgarian Helsinki Committee and involved in a range of other human rights NGOs. He has also trained numerous lawyers in ECHR jurisprudence. His term of office (nine years) will start within three months.
In respect of Serbia, Branko Lubarda was elected. In the first round none of the three candidates managed to receive an absolute majority and Mr Lubarda ended second. in the second voting round he obtained a majority: 90 of 159 votes cast. He is currently professor of labour law at the University of Belgrade. He has been active, amongst others, in state institutions fighting corruption. Mr Lubarda will succeed the current judge in respect of Serbia: Dragoljub Popovic.
One may note, in addition, that at the end of January the new Committee on the Election of Judges of the Parliamentary Assembly of the Council of Europe started its work, under the chairmanship of Klaas de Vries. General information on how the process of election of judges works, can be found here.

Monday, 19 January 2015

New Book on Effects and Implementation of Judgments of the Court

Professors Anja Seibert-Fohr (University of Goettingen) and Mark Villiger (judge at the European Court in respect of Liechtenstein) have compiled an edited volume following the very successful conference on the European Court of Human Rights held at Goettingen in 2013. The book is entitled 'Judgments of the European Court of Human Rights - Effects and Implementation' and has been published with Nomos Verlag. This is the abstract: 

This volume deals with the domestic effects of judgments of the European Court of Human Rights as a challenge to the various levels of legal orders in Europe. The starting point is the divergent impact of the ECtHR’s jurisdiction within the Convention States. The volume seeks new methods of orientation at the various legal levels, given the fact that the Strasbourg case law is increasingly important for most areas of society. Topical tendencies in the case law of the Court are highlighted and discussed against the background of the principle of subsidiarity. The book includes a detailed analysis of the scope, reach, consequences and implementation of the Court’s judgments and of the issue of concomitant damages. At the same time the volume deals with the role of domestic jurisdictions in implementing the ECtHR’s judgments. Distinguished Judges, legal academics and practitioners from various Council of Europe States are among the contributors to this volume, which succeeds in bringing divergent points of view into the discussion and in developing strategies for conflict resolution.

Monday, 22 December 2014

Christmas Break

Dear readers, with this beautiful photo of the Utrecht Dom Tower on a cold winter night, this blog is taking its Christmas break. I would like to thank all of you for all your contributions and information, especially those of the guest bloggers and commentators which feed into this blog. Across the world, 2014 was a horrendous year from a human rights perspective, with all the ongoing armed conflicts affecting large numbers of people, especially children. In the face of this, every contribution large and small to defend and uphold human rights, from the lowest court to the European Court in Strasbourg and by all of us, is all the more necessary. The coming year in that sense presents us with as many challenges on this front as ever. All my best wishes to you for the holiday season and for a good 2015!

Saturday, 20 December 2014

CJEU Rules: Draft Agreement on EU Accession to ECHR Incompatible with EU Law

In what can be characterized as a legal bombshell just before Christmas, the Court of Justice of the European Union (CJEU) this week issued its long-awaited Opinion in which it held that the Draft Agreement on the Accession of the European Union to the ECHR is incompatible with EU law. This means that accession under the current draft agreement has become impossible. The very long and winding road, by now a saga whose start can be traced decades back, of the Union's accession to Europe's foremost human rights treaty seems to have become even longer. And the end is not in sight at all yet.

How did we get to this point?

Eighteen years ago, in 1996, a first attempt at rapprochement between the two European legal systems had also been halted by the (then) European Court of Justice. In its Opinion 2/94 it held that the European Community, as it was called at the time, did not have the legal competence to accede to the European Convention on Human Rights. That first setback led to years of negotiations culminating, through the Treaty of Lisbon of 2009, in a change of Article 6 of the EU Treaty. The current provision includes a paragraph stating that the European Union shall accede to the ECHR. Importantly, it also states that accession shall not affect the Union's competences. In a mirroring exercise, on the Council of Europe's side, Protocol 14 to the ECHR - which entered into force in 2010 - enables accession of the EU to the European Convention. Until then, only states could accede. Once these two fundamental building blocks were put in place an arduous negotiation process could start culminating in a complex Draft (revised) Agreement on EU accession to the ECHR in 2013. Since this was a proposed international agreement between the European Union and other parties, EU law (Article 218 TFEU) required that the Court of Justice of the European Union had to give its opinion on the compatibility of the draft with European Union law (see for other subsequent steps to take, my earlier report here). The European Commission, which had been the main negotiator on the EU's side in the process leading to the draft agreement, asked the Court for its opinion in July 2013. No less than 24 (of the 28) EU member states intervened in the procedure, showing the high legal and political interest which the procedure raised. This week, this Opinion was issued, with a result that for the time being puts a halt to any progress on this front. For the negotiators it is back to the drawing table, but coming to a new, acceptable result will be rather difficult considering the fundamental points in the CJEU's Opinion.

Content of the Opinion

The Court's substantive views can be found from paragraph 144 onward (part VIII ff.). The Court notes the progress since its Opinion of 1996 in that there is now, through the Lisbon Treaty, a legal basis for EU accession to the ECHR (para. 153). Emphasizing that the European Union has a specific nature which distinguishes it from states, the Court notes that the draft Agreement rather seems to treat the EU as much as possible as a state. By contrast, the Court notes that the EU is by its very nature not a state (para. 156). The Court notes a number of issues which are fundamental but not addressed explicitly or solved to a sufficient extent in the draft Agreement.

First, the draft Agreement risks negatively affecting the special features and autonomy of EU law in a number of ways. Coordination between Article 53 of the ECHR (safeguards for existing human rights) and Article 53 of the EU´s own Charter of Fundamental Rights (level of protection of rights). In addition, the principle of mutual trust under EU could be undermined - which is especially relevant in justice affairs (the EU´s area of Freedom, Security, and Justice). And no provisions are included on the linkages between the EU´s preliminary ruling procedure and the advisory procedure under Protocol 16, in both of which national judges can turn to European Courts.

Second, the Court notes that a key element in the draft Agreement is contrary to EU law. Article 344 TFEU binds Member States not to put disputes concerning application or interpretation of EU Treaties to any other means of settlement than provided for in those Treaties. Since the draft Agreement does not preclude disputes on human rights application to be to review by Strasbourg (article 6 of the Draft Agreement replaces the inter-state mechanism by an inter-part mechanism), this could affect Article 344 TFEU.

Third, the Draft Agreement´s part on the co-respondent mechanism and on the procedure for prior involvement of the court of Justice do include safeguards to preserve the special characteristics of the EU and European Union law to be preserved.

Fourthly, in the Court's view the draft Agreement is problematic on the point of the Union's Common Foreign and Security Policy (CFSP). Under EU law, the Court has almost no jurisdiction over these issues. The Agreement, by contrast, does not rule out that the European Court of Human Rights would be able to rule on issues of CFSP). Strasbourg thus would be allowed to rule on issues on which Luxembourg (within the EU legal system) is not allowed to rule. This would entail giving exclusive judicial review to a non-EU body on matters of CFSP, in sofar as they relate to compliance with ECHR rights. In line with its own earlier case-law excluding external, non-EU review of EU acts or omissions, the Court refuses to make an exception for an external system that is geared towards the protection of fundamental rights. As Steve Peers has rightly noted (see link to his comments below) this amounts to politics of the playground. What Luxembourg cannot have, Strasbourg will not have apparently. 

As a result of these aforementioned shortcomings, the draft Agreement is, in the Court's view, incompatible with EU law. This is a rather different conclusion than the one reached in June 2014 by the Court´s own Advocate General Kokott in her views on the issue. She formulated a smaller, less far reaching lists of safeguards which would have to part of the deal. Her conclusion was more of the nature of a “yes, if” rather than a “no, unless” (as the Court now has done).

Consequences

The EU as a whole now faces a very difficult challenge. On the one hand, it shall accede to the ECHR as its own key Treaty requires it to and it thus has to carry on with its efforts in reaching that goal. On the other hand this is now impossible, unless a large list of key changes are made to the draft Agreement. Changes which would have to be agreed upon not just by the EU and its member states but by all State Parties to the ECHR. Non-EU countries may very well lose their patience with the EU and not cooperate, as the previous outcome was already reached after arduous negotiations, for the most part difficult because of internal EU difficulties. There may be another reason than loss of patience which may undermine the willingness of these other states to agree with such changes. By explicitly holding on to the different nature of the EU and in fact to its own apex position, the CJEU makes it almost impossible to close the human rights gap identified by so many year (especially in the area of CFSP). An amended draft Agreement may cast into stone the  current factual shortcomings in human rights protection by not giving the European Court of Human Rights its full role as the highest human rights court in Europe. But this is not just a struggle between the EU and non-EU states, it is also very much one between the Member States and the Luxembourg Court. Even if all EU Member States want to submit the EU´s actions to an external human rights adjudicator, the CJEU has effectively blocked it basing itself on the nature of EU law. The only way to change that would be to change the EU Treaties themselves. The choice thus seems to be one between two very difficult roads, both of which would take years to travel even in the most optimistic assessment.

Other reporting

The CJEU's press release on its Opinion (2/13) is available here. Other recent comments on the Opinion have been made on the EU Law Analysis Blog by Steve Peers - extensive, well-informed and critical - and over at EUTopialaw by Aidan O'Neill. More are sure to follow. For the time being, the Opinion will lay as a not so welcome Christmas gift under the tree from Luxembourg or as a legal turkey that is stuffed with content which is difficult to swallow for all the negotiators involved in the previous steps. For now, it seems that the Opinion is more about safeguarding the CJEU's position at the apex of the EU's legal order rather than at closing a long-standing gap in European human rights protection. To be continued in 2015!

Monday, 15 December 2014

Updated Court Admissibility Guide Available

Earlier this month, the Court presented an updated version of its Practical Guide on Admissibility Criteria. This third edition is updated with case-law until 1 January 2014 and includes the procedural conditions which became stricter on that first day of 2014. The Guide is also available in hard copy with Wolf Legal Publishers. As with the previous editions, it will eventually be translated in a large number of state party languages (see for current translations of the second edition here). The need for such a compilation remains pressing: still the large majority of the applications reaching Strasbourg is dismissed for failing to meet the admissibility criteria (92% in 2013). This is not only a setback for those applying, but also leads to an enormous amount of extra (and for a large part unnecessary) work for the European Court. No wonder then that the Court's current President Dean Spielmann said the following at the launch of this third edition: "In spite of the important reduction in the number of pending cases over the last years, the Court still receives far too many applications that should never have been brought as they fail to meet these various requirements. Practitioners should study this Practical Guide carefully before deciding to bring a case. By so doing they will make an important contribution to the effectiveness of the European Convention on Human Rights.” There indeed is a link between sound legal advice by national lawyers and the workload of the Court. This makes the translation into the main languages of countries from which most applications stem all the more urgent. This is the book's description:

As of 1 November 2014, about 78,000 applications were pending before a judicial formation of the Court. Although the Court’s docket has been reduced by nearly 50% over the last three years, this still represents a very significant number of cases to be brought before an international tribunal and continues to threaten the effectiveness of the right of petition enshrined in the Convention. The vast majority of cases (92% in 2013) will be rejected by the Court on one of the grounds of inadmissibility. Such cases clog up the Court’s docket and obstruct the examination of more deserving cases where the admissibility requirements have been satisfied and which may concern serious allegations of human-rights violations.The 2010 Interlaken Conference on the reform of the Court called upon the “States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria”. The Court’s first response to the call was to prepare a Practical Guide on Admissibility Criteria which clearly sets out the rules and case-law concerning admissibility. This third edition covers case-law up to 1 January 2014 and the stricter procedural conditions for applying to the Court which came into force on that date. Practitioners and prospective applicants should study this Practical Guide carefully before deciding to bring a case before the European Court of Human Rights.

Thursday, 11 December 2014

New Book on the Convention as a Living Instrument

Professor Andreas Zimmermann of the University of Potsdam and director of its Human Rights Centre has just published an edited volume on the European Convention as a Living Instrument. The German-language book is entitled 60 Jahre Europäische Menschenrechtskonvention – Die Konvention als "living instrument" (Berliner Wissenschafts-Verlag 2014). The book, both available as hard copy and as e-book, compiles the contributions and comments made at a conference in Potsdam on 60 years ECHR, and includes contributions on dynamic interpretation of the Convention, on the European constitutional order, and on the Committee of Ministers (full table of contents here). This is the abstract (in German):

2013 jährte sich das Inkrafttreten der Europäischen Menschenrechtskonvention zum 60. Mal. Seit ihrem Bestehen hat die Konvention insbesondere durch den auf ihrer Grundlage gegründeten Gerichtshof den Schutz der Menschenrechte in Europa wesentlich gestärkt. Mit ihren mittlerweile 47 Vertragsparteien ist sie zu einem gesamteuropäischen Grundrechtsschutzsystem geworden, dessen Akzeptanz sich nicht zuletzt an den in den vergangenen Jahren rasant gestiegenen Fallzahlen zeigt. Dennoch steht die EMRK auch in der Zukunft vor besonderen Herausforderungen. Dieser Band stellt den Versuch einer Bilanz der vergangenen 60 Jahre dar und enthält die Beiträge der Vortragenden des Workshops „60 Jahre Europäische Menschenrechtskonvention – die Konvention als ‚living instrument‘“, der anlässlich des Jubiläums durch das MenschenRechtsZentrum der Universität Potsdam veranstaltet wurde. Schwerpunktmäßig beschäftigen sich die Beiträge mit der Rechtsfortbildung durch den EGMR, insbesondere mittels einer dynamischen Auslegung der Konvention, der konstitutionellen Dimension der EMRK, der Durchsetzung seiner Urteile sowie dem Reformbedarf aufgrund gestiegener Arbeitsbelastung.

Friday, 28 November 2014

Fear Speech and Conflict Escalation

As a short excursion away from the ECHR, permit me to draw your attention to an article I just published in the Human Rights Quarterly. In the article I introduce the notion of "fear speech" as a complement to the well-known notion of "hate speech". I have endeavored to connect insights from the field of conflict studies to the way in which legal scholars and practitioners deal with freedom of expression in situations of risks of violence. The article is entitled "Words of Violence: “Fear Speech,” or How Violent Conflict Escalation Relates to the Freedom of Expression" and was published in no. 4 of vol. 36 (November 2014). This is the abstract:

The limits of the freedom of expression are a perennial discussion in human rights discourse. This article focuses on identifying yardsticks to establish the boundaries of freedom of expression in cases where violence is a risk. It does so by using insights from the social sciences on the escalation of violent conflict. By emphasizing the interaction between violence and discourse, and its effect on antagonisms between groups, it offers an interdisciplinary perspective on an ongoing legal debate. It introduces the notion of “fear speech” and argues that it may be much more salient in this context than hate speech.