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).


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.

Thursday, 27 November 2014

Book on ECHR and Transitions

Dr. Inga Švarca has published the book 'The Procedure of the European Court of Human Rights Regarding Countries in Transition. The ECtHR’s Transitional Justice Cases against Latvia', which is also her PhD dissertation obtained at the University of Hamburg. Beyond being a case study of Latvia in transiton, it also has a lot of general insights to offer on transitional justice and the ECHR. This is the book's summary: 

After the collapse of the Soviet Union, all post-communist states in Europe were countries in transition facing specific judicial problems when they acceded to the European Convention on Human Rights.

These new Member States applied various transitional justice tools resulting in numerous applications examined by the European Court of Human Rights (ECtHR). Nevertheless, the ECtHR has not (yet) followed a clear and foreseeable methodical approach to deal with these unique and complicated cases in an equal manner.

This analysis comes up with suggestions how to deal methodically with the changing role of the ECtHR and the challenges created by countries in transition with their manifold legacies. 

Friday, 24 October 2014

New ECHR Readings

This Autumn presents a remarkable range of ECHR-related publications in academic journals and books. Please find below an extensive selection:

The newest issue of the Journal of International Criminal Justice (Vol. 12, no. 4, 2014) includes:

* Helen Keller and Corina Heri, 'Enforced Disappearance and the European Court of Human Rights: A ‘Wall of Silence’, Fact-Finding Difficulties and States as ‘Subversive Objectors’'
* Corina Heri, 'Enforced Disappearance and the European Court of Human Rights’ ratione temporis Jurisdiction: A Discussion of Temporal Elements in Janowiec and Others v. Russia'

*  Chimène I. Keitner, 'Jones and Others v. United Kingdom', International Legal Materials (Vol. 53, no. 3, 2014). 

* Susana Sanz Caballero, 'How Could It Go So Wrong? Reformatio in Peius before the Grand Chamber of the ECtHR in the Case Janowiec and Others v. Russia (or Polish Collective Memory Deceived in Strasbourg)', Polish Yearbook of International Law, vol. 33 (2013) pp. 259-278.  

* M. Rohan, 'Refugee family reunification rights: a basis in the European Court of Human Rights' family 
reunification jurisprudence', Chicago Journal of International Law, vol. 15, no. 1 (2014) pp. 347-375.

* K. Dzehtsiarou and D. Coffey, 'Legitimacy and independence of international tribunals: an analysis of the European Court of Human Rights', Hastings International and Comparative Law Review, vol. 37, no. 2 (2014) pp. 271-322. 

* E. Brems, 'Face veil bans in the European Court of Human Rights: the importance of empirical findings', Journal of Law and Policy, vol. 22, no. 2 (2013/14) pp. 517-552.

* D. Fenwick, ‘Abortion jurisprudence’ at Strasbourg: deferential, avoidant and normatively neutral?',  Legal Studies, vol. 34, no. 2 (2014) pp. 214-241.

* K. Dzehtsiarou and N. O'Meara, 'Advisory jurisdiction and the European Court of Human Rights: a magic bullet for dialogue and docket-control?', Legal Studies, vol. 34, no. 3 (2014) pp. 444-468.

* C. Ryngaert, 'Jones v United Kingdom: the European Court of Human Rights restricts individual accountability for torture', Utrecht Journal of International and European Law, vol. 30, no. 79 (2014) pp. 47-50.

* Uladzislau Belavusau, 'Experts in hate speech cases: Towards a higher standard of proof in Strasbourg?', in: Lukasz Gruszczynski and Wouter Werner (eds.), Deference in International Courts and Tribunals

The new issue of the New Journal of European Criminal Law (vol. 5, no. 2, 2014) includes:

* E. Thoonen and W. Duijst, 'Suicide in detention in the light of the Human Rights Convention', pp. 
* T. Decaigny, 'Inquisitorial and adversarial expert examinations in the case law of the European Court of Human Rights', pp. 149-166.
* J. Boucht, 'Civil asset forfeiture and the presumption of innocence under Article 6(2) ECHR', pp. 221-255.

New articles in the online International Journal on Human Rights include:

Ronagh J.A. McQuigg, ’The European Court of Human Rights and domestic violence: Valiuliene v. Lithuania’,
* Gregor Puppinck and Claire De La Hougue, ‘The right to assisted suicide in the case law of the European Court of Human Rights’.

Finally, please find in the menu on the right the link to a European-wide prize question, which is set up by the network of European Young Academies of Sciences - an exciting quest to think creatively about the future of Europe. Click on the image for more information - everyone is welcome to participate! I have the honor of serving in the jury.

Friday, 17 October 2014

ECHR Articles in Newest NQHR

The newest issue (no. 3 of 2014) of SIM's own Netherlands Quarterly of Human Rights includes no less than three ECHR-related contributions: two articles and the column are dedicated to the ECHR:

* Column:  Lourdes Peroni, 'On Religious and Cultural Equality in European Human Rights Convention Law'

And the two articles:

* Linos-Alexander Sicilianos, 'The Involvement of the European Court of Human Rights in the Implementation of its Judgments: Recent Developments under Article 46 ECHR'

* Hubert Smekal and Katarína Šipulová, 'DH v Czech Republic Six Years Later: On the Power of an International Human Rights Court to Push through Systemic Change'

Tuesday, 7 October 2014

Seminar on ECHR National Counter-Dynamics

On 30 and 31 October the universities of Antwerp and Leuven are co-organising a seminar entitled 'Shifting the Convention System: Counter-dynamics at the National Level' in Antwerp. According to the organisers, the seminar "aims to map out to what extent criticism on the European Court of Human Rights and its case law is being translated into counter-dynamics at the political or judicial level. The focus is not solely put on countries that are known to have highly critical voices. Rather, the seminar will explore whether the translation of criticism into (the demand for) concrete changes in the dynamics between national fundamental rights protection and the Convention system is a pan-European reality or merely limited to a few countries. To enable comparison, the country reports presented at the seminar are based on a questionnaire drafted by the organisers." A very interesting endeavour as we mostly only hear about criticism in a few countries or from a few voices. This makes this mapping exercise all the more useful, to avoid over- or under-estimation the problem. This is the programme of the seminar:

Programme Thursday 30 October 2014

13.30 Registration
13.50 Welcome address by Patricia Popelier (UAntwerp)

Session 1: Shifting dynamics (Chair: Patricia Popelier)
14.00 Sarah Lambrecht (UAntwerp & Belgian Constitutional Court)
Overarching Strategies
14.20 Eva Brems (UGent)
The Impact of Counter-dynamics on the Legitimacy of the ECtHR
14.40 Koen Lemmens (KULeuven)
Criticising the ECtHR or Misunderstanding the Dynamics of Human Rights Protection?
15.00 Discussion
15.30 Coffee break

Session 2: Strong Voices of Criticism vs Strasbourg Friendly Voices
(Chair: Judge Paul Lemmens)
15.50 Roger Masterman (University of Durham) - UK
16.10 Tilmann Altwicker (University of Basel) - Switzerland
16.30 Janneke Gerards (Radboud University Nijmegen) - Netherlands
16.50 Patricia Popelier (UAntwerp) - Belgium
17.10 Discussion
17.40 Reception
19.00 Conference dinner with speakers

Programme Friday 31 October 2014

Session 3: Strong Judicial Review Mandate vs Weak Judicial Review Mandate
(Chair: Catherine Van de Heyning)
9.15 Katharina Pabel (Johannes Kepler University of Linz) - Germany
9.35 Giuseppe Martinico (Scuola Superiore Sant’Anna) - Italy
9.55 Anna-Sara Lind (Uppsala University) - Sweden
10.15 Discussion
10.45 Coffee break

Session 4: Criticism on the ECtHR, an East and Central-European Perspective
(Chair: Koen Lemmens)
11.05 Joseph Marko (University of Graz) - Bosnia and Herzegovina
11.25 Lubomir Majercik (Czech Constitutional Court) - Czech Republic
11.45 Armen Mazmanyan (Center for Constitutional Studies Yerevan) - Russia
12.05 Discussion
12.35 Closing words by Catherine Van de Heyning (UAntwerp)
12.50 Lunch

For information on how to register, see here.

Thursday, 2 October 2014

News from SIM

Very happy to inform you that as of this week I have been appointed full professor of human rights and director of the Netherlands Institute of Human Rights (SIM)! Last week was the formal hand-over ceremony at the occasion of the annual SIM Peter Baehr Lecture (delivered this year by Sir Nigel Rodley), where my esteemed predecessor, professor Jenny Goldschmidt, handed over the baton to me. I feel deeply honoured by having been appointed to this new position and am looking forward to cooperating with the human rights research community across the globe to continue SIM's mission of human rights research and education. In addition, I will of course endeavor to keep up with the challenge of hosting the ECHR Blog. ECHR-related news will be on here again next week (and forgive me for this exceptional detour to something not ECHR-related, dear readers!).

Monday, 22 September 2014

New Book on Article 6 ECHR - Fair Trial Rights

Ryan Goss, lecturer in Law at the Australian National University in Canberra, has written a book which critically analyses what is probably the most litigated right in the Convention: Article 6 ECHR, the right to a fair trial. The book, entitled 'Criminal Fair Trial Rights - Article 6 of the European Convention on Human Rights', has been published with Hart Publishing. It takes an interesting cross-cutting approach and in doing so deviates from standard handbooks on the issue. This is the abstract: 

"The Article 6 fair trial rights are the most heavily-litigated Convention rights before the European Court of Human Rights, generating a large and complex body of case law. With this book, Goss provides an innovative and critical analysis of the European Court's Article 6 case law.

The category of 'fair trial rights' includes many component rights. The existing literature tends to chart the law with respect to each of these component rights, one by one. This traditional approach is useful, but it risks artificially isolating the case law in a series of watertight compartments.

This book takes a complementary but different approach. Instead of analysing the component rights one by one, it takes a critical look at the case law through a number of 'cross-cutting' problems and themes common to all or many of the component rights. For example: how does the Court view its role in Article 6 cases? When will the Court recognise an implied right in Article 6? How does the Court assess Article 6 infringements, and when will the public interest justify an infringement? 

The book's case-law-driven approach allows Goss to demonstrate that the European Court's criminal fair trial rights jurisprudence is marked by considerable uncertainty, inconsistency, and incoherence."

Tuesday, 16 September 2014

New Book on EU Accession to ECHR

The Council of Europe itself has now published a book on the ever-continuing story of the European Union's accession to the European Convention on Human Rights. The book, entitled 'The accession of the European Union to the European Convention on Human Rights', was authored by Johan Callewaert of Leuven University. It is available both in print version and in PDF, both for sale through the Council of Europe's website. This is the abstract:

"Provided for under the Treaty of Lisbon, the accession of the European Union to the European Convention on Human Rights is destined to be a landmark in European legal history because it will finally make it possible for individuals and undertakings to apply to the European Court of Human Rights for review of the acts of European Union institutions, which unquestionably play an increasingly important role in our daily lives. After nearly three years of negotiations, a draft agreement on European Union accession was adopted on 5 April 2013. In the light of the draft agreement, this publication offers a concise analysis of the reasons for European Union accession to the Convention, the means by which this is to be achieved and the effects it will have."

Wednesday, 10 September 2014

New ECHR Readings

Please find below a number of new readings related to the European Convention on Human Rights from a number of leading international legal journals:

* Matthew Scott, 'Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles 3 and 8 of the European Convention on Human Rights?', International Journal of Refugee Law (Vol. 26, no. 3, 2014).

* L. Peroni, 'Deconstructing ‘legal’ religion in Strasbourg', Oxford Journal of Law and Religion (vol. 3, no. 2, 2014) pp. 235-257.

*  N. Cox, 'Delfi AS v Estonia: the liability of secondary internet publishers for violation of reputational rights under the European Convention on Human Rights', Modern Law Review (vol 77., no. 4) pp. 619-629.

* C. Zoethout, 'Margin of appreciation, violation and (in)compatibility: why the ECtHR might consider using an alternative mode of adjudication', European Public Law, (vol. 20, no. 2, 2014) pp. 309-330.

* G. Bianco and G. Martinico, 'Dialogue or disobedience? On the domestic effects of the ECHR in light of the Kamberaj decision' (vol. 20, no. 3, 2014), European Public Law pp. 435-450.

* A. Mowbray, 'Contemporary aspects of the promotion of democracy by the European Court of Human Rights', European Public Law 2014 (vol. 20, no. 3, 2014) pp. 469-498.

Finally, Anton Burkov, one of the key Russian ECHR experts has published an Op-Ed in The Moscow Times on the ECHR as a last resort for Russians, entitled 'Russians Can Only Find Justice in Europe'

Friday, 5 September 2014

Lodging Applications in All Official Languages

The Court has finalized the translation of the applicant pages on its website. The information on how to apply is now available in all the official languages of the state parties to the Convention, ranging from Albanian to Ukrainian, and from Catalan to Estonian. For each language, the pages contain practical information on how to lodge a complaint, on admissibility criteria, and the Convention text. Even some of the explanatory videos have been translated. Paradoxically, this ever-increasing accessibility in practical terms may not bode well for the caseload of the Court. It is therefore encouraging, that the Court also noted earlier this week that great progress has been made in reducing that backlog. In fact, it backlog has decreased from 151,6000 in early 2012 to 84,850 at the end of June of this year. This amounts to a 44% decrease, no mean feat to say the least, even if we consider that the single judge mechanism responsible in combination with new working methods for most of this have been able to do so by dealing with the relatively more straight-forward cases. Although the amounts are still high, the trend for the past two years has at least been going in the right direction. 

Wednesday, 3 September 2014

Two ECHR-related Conferences at Ghent University

The prolific Human Rights Centre of Ghent University is organising two conferences this Autumn, both of which are to an important degree about the ECHR:
The first is a seminar on Law and Religion on 23 September. The entire afternoon of the seminar will be dedicated to the Court's case-law on the issue. More information and the full programme can be found here. This is what the conference is about in a nutshell:
"The seminar will bring together religious scholars and legal scholars to discuss law's conceptions of religion and its reception of different religious experiences. Speakers will address questions such as: Are the notions of religion underpinning the law inclusive enough to attend to the diversity of religious ways in reality? If not, can and should these notions be legally "stretched" so as to become more responsive to such diversity?

The morning sessions will focus on how law, including human rights law, understands and should understand religion. The afternoon sessions will focus on the ways in which a specific court - the European Court of Human Rights - conceives of and should conceive of religion. Religion scholars presenting in the afternoon will unpack the notions of religion underlying selected freedom of religion judgments and examine the extent to which these notions attend to applicants' religious experiences. Legal scholars, in turn, will look at whether applicants' religious experiences can and should be legally translated more fully."
The second is a conference on conflicts between human rights, to be held on 16 October. The title of the conference is: '(How) Should the European Court of Human Rights Resolve Conflicts between Human Rights?'. Several of the former and current judges, including President Spielmann, will be commentators at the event. According to the organisers, this is what it will be about:
"The Symposium aims to evaluate the legal reasoning of the European Court of Human Rights in conflicting rights cases and to propose novel methodological tools and frameworks for the judicial resolution of conflicts between human rights in the context of the European Convention on Human Rights.

In order to tackle these challenges, a number of renowned scholars have been invited to present their views on how (specific) conflicts between human rights ought to be resolved. First, a small number of scholars will set the stage for the debate by outlining their general approaches, frameworks and tests for the judicial resolution of conflicts between human rights in the ECHR context. Following these general presentations, a larger number of panels will address specific types of conflicts. To ensure productive and spirited debate, the participants in the specific panels have been asked to present their views on how certain pre-selected ECtHR cases should be (or should have been) resolved.

In order to increase the practical relevance of the Symposium and to offer the speakers useful feedback on the practicality of their advocated approaches, a number of (former) ECtHR Judges have been invited to comment on the practicality and feasibility of the proposed approaches."

More information on this second conference can be found here.

Thursday, 28 August 2014

New Book on EU Accession to the ECHR

In Hart's Legal Publishing series on Modern Studies in European Law, Vasiliki Kosta, Nikos Skoutaris and Vassilis Tzevelekos have published the edited volume The EU Accession to the ECHR. This wide-ranging volume includes over twenty chapters, a few of which were published in a slightly different form before in the European Journal of Human Rights (see my earlier notification here). Tables of case-law, legislation and treaties render this book accessible for those who search for information on a particular issue, much more than edited volumes normally do. The full table of contents can be found here. This is the abstract:

Article 6 of the Treaty on European Union (TEU) provides that the EU will accede to the system of human rights protection of the European Convention on Human Rights (ECHR). Protocol No 9 in the Treaty of Lisbon opens the way for accession. This represents a major change in the relationship between two organisations that have co-operated closely in the past, though the ECHR has hitherto exercised only an indirect constitutional control over the EU legal order through scrutiny of EU Member States. The accession of the EU to the ECHR is expected to put an end to the informal dialogue, and allegedly also competition between the two regimes in Europe and to establish formal (both normative and institutional) hierarchies. 

In this new era, some old problems will be solved and new ones will appear. Questions of autonomy and independence, of attribution and allocation of responsibility, of co-operation, and legal pluralism will all arise, with consequences for the protection of human rights in Europe. 

This book seeks to understand how relations between the two organisations are likely to evolve after accession, and whether this new model will bring more coherence in European human rights protection. The book analyses from several different, yet interconnected, points of view and relevant practice the draft Accession Agreement, shedding light on future developments in the ECHR and beyond. Contributions in the book span classic public international law, EU law and the law of the ECHR, and are written by a mix of legal and non-legal experts from academia and practice.

Tuesday, 26 August 2014

New ECHR Readings

Here is another selection of recent academic writings on the European Convention of Human Rights. The newest issue of the Human Rights Law Review (vol. 14, no. 3, September 2014) has been published. Its contents include:

* Robert Spano, 'Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity'
* Ed Bates, 'Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg'
* James A. Roffee, 'No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights'

Earlier in the month, the EJIL Talk! blog reporter on the Yukos case's just satisfaction: 

* Dr. Conor McCarthy ‘The ECtHR’s Largest Ever Award for Just Satisfaction Rendered in the Yukos Case’ 

Finally, the newest issue of the Cambridge Journal of International and Comparativ​e Law (vol. 3.2, 2014, pp. 407-443) includes:

* Vladislava Stoyanova, 'Article 4 of the ECHR and the Obligation of Criminalizing Slavery, Servitude, Forced Labour and Human Trafficking'. This is the article's abstract: 

This article addresses the interaction between international human rights law and national criminal law as exemplified and revealed in relation to the abuses of slavery, servitude, forced labour and human trafficking (THB). First, I point out the mismatch between the interpretative techniques of international human rights law and national criminal law. The reportedly low numbers of prosecutions and convictions for abuses against migrants has gathered increasing attention. As a reaction it has been suggested that the definitions of THB and of slavery, servitude and forced labour (where the latter have been specifically criminalized) have to be expansively construed. These suggestions ignore basic criminal law precepts. Criminal law has to remain faithful to the principle of legal certainty and to the rights of the accused which ban expansive interpretations. It is human rights law which celebrates liberal interpretations of concepts for the purpose of holding states internationally responsible for their failures to protect. Despite the difference in their interpretative standpoints, there is a clear interaction between these two fields of law. A manifestation of the interaction is that the ECHR obliges states to criminalize the abuses falling within the material scope of Article 4 of the ECHR. I argue that many states have failed to fulfil this obligation since the focus has been predominantly placed on the criminalisation of THB. This leads to failures to address abuses where there are no elements of recruitment, transportation, transfer etc. by means of deception/coercion. I also demonstrate that Article 4 of the ECHR obliges states to incorporate in their domestic criminal laws clear definitions of crimes intended to address the abuses falling within the scope of Article 4. An obligation which many states have failed to fulfil since they have directly copied the international definition of THB and/or the human rights definitions of slavery, servitude and forced labour, without further establishing the elements of the crimes at domestic level. Finally, I suggest that there needs to be a better articulation of the distinctions between different crimes meant to addresses abuses falling within the ambit of Article 4 of the ECHR.

Monday, 25 August 2014

New Edition of Jacobs White & Ovey ECHR Handbook

This summer also witnessed the publication of a new version of one of the other widely used handbooks about the ECHR: Jacobs, White & Ovey, The European Convention on Human Rights. This revised sixth edition was edited by Benadette Rainey (Cardiff University), Elizabeth Wicks (University of Leicester) and Claire Ovey (from the Court's Registry) and published with Oxford University Press.

The book's case-law has been updated until October 2013. For any further developments occurring between the publication of this version and a future one, the publisher offers an online resource centre, offering case-law and legislation updates (including on the half year since October 2013) as well as a set of useful links (including to this blog).

The book is the slightly less voluminous sister to Harris, O'Boyle and Warbrick handbook (around 650 pages vs 1000). It may therefore be a more palatable choice for students as an introduction into the ECHR at the beginner's level. This is all the more true as it includes at the end the full text of the Convention and the relevant Protocols. At the same time, the structure and level of detail make it an excellent work of reference for scholars and practitioners. Thus, deciding which of the two recently revised books to use is a question of taste (also because the difference in price is very small) - I have been using both for many years now.

This is the book's backcover blurb:

"Over fifty years after its founding, the European Court of Human Rights has dispensed more than 16,000 judgments and affects the lives of over 820 million people. The sixth edition of Jacobs, White & Ovey: The European Convention on Human Rights is a clear and concise companion to this increasingly important and extensive area of the law.

Examining each of the Convention rights in turn, the text lays out the key principles relevant to both students and practitioners. Cutting through the ever-expanding web of cases, authors take you to the pivotal cases in each area and examine the principles that underpin the Court's decisions. A focus on the European Convention itself, rather than its implementation in any one member state, makes Jacobs, White & Ovey essential reading for all those interested in the work of the Strasbourg Court."

Tuesday, 19 August 2014

New Edition of ECHR Handbook Harris Warbrick and O'Boyle

As announced last week in a guest post, the newest, third edition of the classic Harris, O'Boyle and Warbrick, Law of the European Convention of Human Rights has been published with OUP by Harris, O'Boyle, Bates, and Buckley. It is always an enormous endeavor to update books covering such large fields of law, with a constantly increasing flow of new jurisprudence. This is reflected in the faster need to update. Between the original edition of the book (1995) and the second (2009), the time span was much longer than between the second and current third edition. The new edition slightly exceeds 1000 pages, making its handy and precise index all the more crucial as well as an alphabetical list of cited case-law with page references at the start of the book. The only small downside is that the authors have chosen in the references to only add application numbers to the Court's decisions and not to the judgments, but for most cases this should not be too much of a problem to retrieve them. New case-law is taken into account up to the end of October 2013. The preface is a succinct and very useful short update of the key changes in the ECHR system since the last edition and on the discussions surrounding the Court. 

The book is divided into three parts: (I) the Convention 'in context', (II) the 'enforcement machinery' and (III) the 'rights guaranteed'. The first part is a very good introduction into the backgrounds and current status of the Convention system, making it also useful for historians and political scientists. The other two are of a more technical, yet well-structured nature, aimed more at legal researchers and lawyers. All key topical issues (EU accession, pilot judgments, reform Protocols 15 and 16) are included. Although the Convention itself is not printed in full, its provisions are highlighted in grey all over the book, as well as key case-law excerpts - for the quick and impatient browser these provide a good first impression before diving into the minutiae which will be of more interest to those seeking information on a specific issue. It is a great achievement that in times of increasing pressure in academia to produce articles in journals, experts still commit time and effort to compile such handbook overviews, which are among the most useful of all academic work for both students and researchers. 

Congratulations to all authors with this new edition of a classic!

Friday, 15 August 2014

Fact Sheet on Gender Identity Issues Updated

The Court has put online a fully updated factsheet on gender identity issues, with the subtitle 'from the Rees case to the Christine Goodwin case' referring to the gradual shift over the years - often used in teaching about the Convention - in the Court's views on the issue. A number of other factsheets have also been recently updated. Over fifty handy factsheets outlining the jurisprudence of the European Court of Human Rights on key issues are now available.

Thursday, 14 August 2014

Putting the Potential UK Withdrawal from the ECHR into Perspective

Nowhere in Europe does the discussion about the legitimacy (beyond government circles, which in any state party might be unhappy with the Court's judgments at times) of the Strasbourg system seem to be so intense as in the United Kingdom. It is my pleasure to post a guest blog by the authors of one of the main textbooks on the ECHR about this issue, who have just published a new edition. A nuanced yet passionate call to remain a party to the Convention:

UK withdrawal from the Convention? A broader view

In the following guest blog the authors of the third edition of a textbook on the Law of the ECHR (Harris, O’Boyle and Warbrick, The Law of the European Convention on Human Rights, David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, OUP, 2014) look back to the circumstances surrounding the publication of the first edition, in 1995. In July 2014 political events in the UK gave rise to talk of possible UK withdrawal from the ECHR at some point in the future. So the publication of the book and this post is also an opportunity for reflection at what could be a critical time with respect to the UK’s relationship with the Convention.   A significant part of what follows draws on the Preface to the third edition of the authors’ book, the intention being to bring the comments made there to a broader audience than the book itself would have reached. The post that follows is written in the authors’ personal capacity - Ed Bates.

Back in 1995 the Preface to the first edition of Harris, O’Boyle and Warbrick noted that the growth of support for a bill of rights in the UK created the possibility that the provisions of the Convention could be directly applicable in UK courts. It was also noted that ‘if this were to come about, the law of the Convention would be thrust to the fore of university legal curricula and would achieve an immediacy and relevance that would dynamise, if not revolutionize, the United Kingdom’s constitutional system’.

The Human Rights Act, and dialogue between Strasbourg and national judges

All of this has come true since the entry into force of the Human Rights Act 1998, the judicial interpretation of which has given rise to a home grown corpus of human rights law developed first by the House of Lords and, subsequently, the Supreme Court. Both of these courts have based themselves on the case law of the European Court of Human Rights and have not been fearful of pointing to inconsistencies and lack of clarity in Strasbourg law when this was called for. Strasbourg, for its part, has welcomed this new form of ‘dialogue’ inter alia with the Supreme Court and looks with admiration at the manner in which Convention principles have been applied and interpreted in an impressive body of national case law.

The relationship has run into episodic difficulties in cases like Al-Khawaja and Tahery v UK and Taxquet v Belgium (where the UK was an intervener), when, with the opportunity to reconsider the chamber judgment, the Court’s Grand Chamber listened carefully to the arguments of the UK, and adjusted its case law to take into account the specificities of the UK legal system, as pointed out by the Supreme Court, and in keeping with the principle of subsidiarity. As has been noted by many commentators, there has developed over the years a healthy cross fertilisation between the two courts and their respective judgments are eagerly and expertly parsed and dissected by each other. The same can be said for the Court’s relationship with the superior courts of other countries—Germany and France being prime examples.

The importance of this form of judicial dialogue for the orderly development of the law cannot be overstated. But it has also given rise to a realization that while the Strasbourg Court may not be able, as a judicial institution, to defend itself against the buffetings and criticisms it regularly receives from political figures, as in the UK, it can intensify its relationships with the national superior courts through the medium of ‘dialogue’ as a more appropriate and more adapted response to such criticisms. For it must not be forgotten that the essence of the notion of subsidiarity resides in the daily application by the national courts of Convention law.

More possibilities for dialogue with Strasbourg in the ‘age of subsidiarity’?

Opportunities for dialogue will be enhanced when Protocol 16 enters into force, for those States which opt to ratify it. This provides for the possibility of a national superior court to request an advisory opinion from the Court on issues relating to the interpretation of the Convention. It has been dubbed the ‘Dialogue Protocol’ because it offers the prospect of another form of adjudication in Strasbourg, distinct from individual and inter-state complaints, involving the superior courts as willing partners in the elucidation and development of the case law rather than as the potentially irritated subjects of violation verdicts.

In the meantime, and (arguably) against the background of the reform process initiated at Interlaken, including the valuable contribution made by the UK in the context of the Brighton Declaration, there are very strong signs that the Court has met the States’ request to ‘give great prominence’ to ‘principles such as subsidiarity and the margin of appreciation’. In that connection reference may be made to a recent lecture entitled Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity, in which the Icelandic judge in Strasbourg, Robert Spano, responded to criticism levelled at the Court by some former members of the senior judiciary in the UK to the effect that it too easily overrides the views of national decision-makers. Adopting a careful analysis of recent case law, he argues convincingly that Strasbourg has been refining its approach to subsidiarity and the margin of appreciation, ‘adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights’. Judge Spano has suggested that the next phase in the Convention’s life might come to be known as the ‘age of subsidiarity’.

The principle of subsidiarity has always been a fundamental one in the Strasbourg jurisprudence. However, the prospect that the Strasbourg system is indeed embarking on an ‘age of subsidiarity’ should be a vital consideration informing the debate with respect to its role and relationship with the UK. This point is of major significance if the time comes when the future of the Human Rights Act is reconsidered – for the Act facilitates subsidiarity as well as a Strasbourg-UK judicial dialogue – and is thus at the heart of the issue  of the UK’s membership of the Convention itself.

‘Rights Brought Home’ and the Convention under attack in the UK

In 1995 the preface to the first edition of Harris, O’Boyle and Warbrick observed that many of the issues examined in Strasbourg touch on highly sensitive subjects such as prisons, immigration and the administration of justice, and that political figures and media commentators in the UK frequently complain, in ‘strident tones of indignation, of interference in the domestic affairs of the state by uninformed and ill-qualified foreign jurists’. So it has not only been since the passage of the Human Rights Act that the influence of and jurisdiction of the Strasbourg Court has become contentious in the UK.

The politics of the day in the mid- to late-1990s were different, however, as is evident from the Labour Government’s White Paper, Rights Brought Home: The Human Rights Bill. Looking back today it is interesting to note that reference was made to the scheme of supervision provided by the Strasbourg Court as one that was ‘now well tried and tested’ it being established that Convention ‘rights and freedoms’ were ‘ones with which the people of this country [were] plainly comfortable’. Those rights therefore ‘afford[ed] an excellent basis for the Human Rights Bill’ (para 1.3).  

Given the concerns recently expressed in the UK with respect to the Convention as a ‘living instrument’ the speech delivered by Jack Straw (‘Human Rights and Personal Responsibility –  New Citizenship for a New Millennium’, St Paul’s Cathedral, London (2 October 2000)) then Home Secretary, on the day that the Human Rights Act 1998 entered into force, may be looked upon with some interest. He acknowledged that the Convention was not a ‘monument to history’ but that its ‘living instrument’ character was an answer to those ‘who assert that the convention has been developed in a way not anticipated by its draftsmen’.  Straw stated that he had no ‘problem with the living instrument explanation’, but saw matters in ‘a slightly different way’. The ECHR he said, was ‘relevant to the UK today – and tomorrow – because the basic values at its heart are timeless’. They were ‘about the equal worth of all, and the belief in our responsibility to create a society that advances such equal worth and dignity’.

These comments could be made with respect to the judgments against the UK in cases such as Hirst (No.2) (prisoners’ votes), Vinter (whole life sentences) and Othman (Abu Qatada ) (deportation to Jordan). Yet, on the basis of such rulings, the level of criticism in the UK against Strasbourg has developed to an intensity that could hardly have been predicted back in the 1990s. As has been widely reported the point has been reached whereby certain Government ministers have suggested that not only should the HRA be repealed, but even that UK withdrawal from the Convention system should be considered, some going so far as to challenge the Court’s legitimacy as an institution.

UK withdrawal from the ECHR?

Against this background we refer back to 1995, when the Preface to the first edition of our text had asked the rhetorical question whether the Strasbourg system had developed to the point where no European state could seriously contemplate withdrawing from the Convention. What should one make of this today?

It is a measure of the continued success of the Convention system that the question remains a valid one in 2014 for the large majority of the treaty’s 47 High Contracting Parties, indeed, possibly all other States except the UK. For it is our contention that the intensity of the UK debate about the sovereignty of Parliament and the legitimacy of the Court is not replicated in other countries. Of course, there are episodes of criticism elsewhere but, as far as the authors are aware, it would appear that the UK is somewhat isolated in terms of the depth of its apparent opposition to Strasbourg. A detailed study published just last month (J Gerards and J Fleuren  'Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case law') looked to the reception of the ECHR in Belgium, France, Germany, the Netherlands, Sweden and the UK. It concluded that ‘[in] Belgium, France, Germany and Sweden, the overall legitimacy of the Court and its judgments is hardly subject to debate’ [at 369], even if the Court comes in for occasional criticism in respect of specific, individual judgments. A debate about the Court and its influence with respect to the Netherlands did gain some, initial momentum in 2011-2012, although ‘the critical wind subsided’ [at 256].

Would it be an exaggeration to say, then, that the depth and intensity of the debate about the Court in the UK, and which regularly gives rise to talk of denunciation, is a peculiarly British one? If so, one might ask, ‘why’?

It may also be asked whether opposition to Strasbourg in ‘the UK’ is genuinely replicated in large parts of the nation. That this is at least open to question is suggested by the comments made by two members of the Commission on a Bill of Rights (Baroness Kennedy QC and Professor Philippe Sand QC) who argued that it was ‘abundantly clear that there is no [lack of] “ownership” issue [as regards the HRA] in Northern Ireland, Wales and Scotland (or large parts of England), where the existing arrangements under the [HRA] and the European Convention on Human Rights are not merely tolerated but strongly supported’ (para 88.v).

Reform of the Court

Of course, it is not claimed that the Court is a perfect institution. Nor is it maintained that the Convention’s member States embrace everything Strasbourg does with spontaneous love and affection. Yet it was precisely to preserve the Strasbourg system and its effectiveness for future generations that there has been a determination on the part of the Contracting Parties collectively to reform the system, and to overcome the challenges resulting from the overloading of the Court that were starting to become apparent as far back as the 1990s.

The reform conferences held in Interlaken, Izmir and Brighton revealed a strong political will to put the European system on a more solid footing and to give it the tools to deal more effectively with its worrying backlog of cases without seeking, at the same time, to clip the Court’s wings or to weaken the level of protection it provides. Overall there is a clear political attachment to the ECHR amongst Council of Europe States and an endorsement of the Court’s contribution to the development of human rights law and democratic standards. The reform agenda has placed the focus on the issues inter alia of delay in the examination of applications, the margin of appreciation and the notion of subsidiarity (as discussed above), interim measures, the election of judges and the vexed problem of the enforcement of the Court’s judgments (where serious compliance problems have arisen since the first edition of the book).

From the perspective of workload and the backlog of cases, Protocol 14 has now entered into force. The reforms that it introduces, together with internal reforms such as the provisions for pilot judgments and the prioritisation of important cases, have started to ease the Court’s workload. At the end of June 2014 the number of pending cases stood at 84,850 —a considerable reduction from a figure in excess of 160,000 of some two years before.

In this regard a new mood of optimism may be emerging at Strasbourg, and one aspect of the reform debate may be coming to the fore. Noting that the recent phase of reform was commenced at Interlaken under the notion of a ‘shared responsibility’ for the Convention between Strasbourg and the member States, the President of the Court has recently stated that it is living ‘up to its responsibility to achieve greater efficiency, improve its performance, to allocate its resources more effectively and to concentrate increasingly upon priority cases, without abandoning any other cases’. For the reform process to succeed he has called for ‘improvements at Strasbourg’ to be ‘reflected by improvements at the national level, through better observance of the Convention and the existence of effective domestic remedies in case of breach’. As he puts it, ‘[e]ach State must live up to its responsibility’ and the ‘the Committee of Ministers must act more effectively in supervising the execution of judgments – the joint and several responsibility of States under the Convention, as it were’.

The responsibility weighing on the UK today

In this last regard the weight of responsibility bearing on the UK during what remains a difficult time in the Convention’s life must be brought into real focus. What is at stake for the Convention system and Europe overall by the hostility directed toward Strasbourg by the action of a State held in such high regard as the UK cannot be underestimated. ‘Europe overall’ – for one only has to visit the Court’s web site to appreciate the broader importance of the Court given the nature of some the disputes it has been grappling with recently  - an inter-state case brought by Georgia against Russia concerning a collective expulsion of Georgian nationals, the resolution of a long-standing dispute between a variety of Balkan states concerning foreign currency savings in the banks of the former Republic of Yugoslavia, the detention of accused persons in cages during their trial, the hospital treatment of an orphan Aids victim etc). 

It is difficult to imagine that one of the leading founders of the system could turn its back on the Convention without inflicting serious damage on the entire edifice by inspiring other states, beset by more fundamental problems of human rights to follow suit. Some of those States may be from central and eastern Europe, who were encouraged to join the Convention in the 1990s at a critical time in their history, viewing full membership of the Strasbourg system as a necessary component of the legitimacy credentials associated with a democratic, European State. The Secretary General of the Council of Europe has argued before the Parliamentary Joint Committee examining the prisoner voting issue (para 109) that the UK’s withdrawal from the Convention would imperil not just the Convention but the 47 member State Council of Europe as a whole.

Similar comments apply to the potential confrontation that lies ahead with respect to the prisoner voting issue. Former President Sir Nicolas Bratza, has underlined how the position adopted by the UK is likely to have consequences for those member States whose human rights records need significant improvement. In a recent lecture he explained that he was ‘convinced… not only of the fragile nature of the hold on democracy and the rule of law which there exists’ in some of the newer member States, ‘but [also] of the vital importance of the wholehearted support for the Convention system in preserving those ideals’. The UK’s failure to implement the judgment in Hirst has had, he explains, a ‘corrosive effect in Russia and Ukraine’, demonstrating that ‘compliance with the Convention obligations by the established democracies does matter’. Fearing further ‘erosion of the hard-won Convention standards in many parts of the Continent’, Bratza maintains that ‘the damage done by the withdrawal of support for the system by one of its key players would be simply incalculable’. He concludes:

‘That system may indeed be imperfect. But it is the only one that we have. What is needed is not to turn one’s back on that system but to work within it, to make it more effective and, in doing so, ensure that, 60 years after it came into effect, the Convention becomes not a dead letter but the vital and living instrument it was always supposed to be’. [N Bratza, “Living Instrument or Dead Letter – the Future of the European Convention on Human rights”, (2014) EHRLR 116 at 128 –  based on the text of the Miriam Rothschild and John Foster Human Rights Lecture (9 November 2013)

We conclude with the following observations. While the issue of UK membership has come to the fore in UK politics in recent years in ways which could hardly have been foreseen in 1995, it cannot be predicted with any certainty what the outcome will be, either in the short or long term. But we respectfully submit that the particular constitutional difficulties encountered by the UK in recent years are straight-forwardly outweighed by the advantages of being a party to the Convention, and the important role played by the ECHR in developing human rights standards throughout Europe and beyond as part of a collective guarantee of human rights—a role that is intimately bound up with peace and security in the region as recognized in the Convention’s Preamble. That point applied back in the late 1990s when the British contribution to the Convention was a cause for celebration under the banner ‘rights brought home’. But it applies today, and with even greater force, given the reform phase that the Convention system is going through, and the strong evidence that it is indeed proving to be effective, including with respect to some of the criticism that has been levelled against the Court in the UK as regards the principle of subsidiarity and Strasbourg’s relationship with national decision-makers. To put in jeopardy what has been patiently built up over more than 60 years would be a disservice to Europe, the rule of law and to the peaceful settlement of disputes.

D Harris, M O’Boyle, E Bates and C Buckley.

[This post first appeared at (D. Harris, M. O’Boyle, E. Bates and C. Buckley, ‘UK withdrawal from the Convention? A broader view.’ U. K. Const. L. Blog (24th July 2014)].