Monday, 21 December 2015

New Factsheets on the ECHR

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

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

Thursday, 10 December 2015

Final PluriCourts Conference on Reform of ECtHR and UN Treaty Bodies

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

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

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

Confirmed speakers include:

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

Tuesday, 8 December 2015

Call for Papers for European Consensus Conference

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, 4 December 2015

65 Years ECHR - Jekyll and Hyde in Strasbourg

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

Jeckyll and Hyde in Strasbourg

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

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

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

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

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

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

Thursday, 3 December 2015

Reform of the European Court - Guest Post

Dear readers, it is my pleasure to introduce another guest post by one of this blog's regular commentators, Kanstantsin Dzehtsiarou, of the University of Liverpool. He has written a comment on the final report on the long-term future of the Court, an intergovernmental process in which he has been involved as an ad-hoc expert. For all updates and relevant texts on the continuing reform process, one can consult this page on the Council of Europe's website.

A bird in the hand is worth two in the bush: reform of the European Court of Human Rights
Kanstantsin Dzehtsiarou

The Steering Committee for Human Rights (CDDH) has recently published a revised draft of the final report on the longer-term future of the Convention system. The report appears to be quite conservative in its tone and tries to preserve the Strasbourg system rather than to call for any reforms. On the one hand, it supports incremental changes of the system through the fine-tuning of the new procedures provided by Protocol 14 and the incoming Protocol 15. On the other hand, it does not respond to more fundamental challenges that the Court is facing such as its declining ability to protect human rights in Europe effectively.

This report is the outcome of the long and very inclusive work of the drafting group F of the CDDH on the reform of the Court. This drafting group was established to conduct preliminary work outlining the need for further reforms. its task was to audit the European Court of Human Rights (ECtHR) and suggest whether any further reforms are needed. The Committee of Ministers of the Council of Europe would then decide if any amendments to the Convention through new Protocols are appropriate. The process that led to this report was unprecedented - the Council of Europe made an open call for suggestions of the possible avenues for reform and everyone could submit his or her proposals. Although this call has resulted in a high number of submissions, their quality has varied substantially.

Some of the suggestions from the open call were considered by the experts of the CDDH who then identified key problematic areas in the functioning of the ECtHR: national implementation of the Convention, the authority of the Court, the execution and supervision of judgments, and the place of the Convention mechanism in the European and international legal order. It seems that these areas are indeed crucial in ensuring the Court’s sustainability. The proposals made by the CDDH in these key areas are briefly discussed here.

Implementation of the Convention on the national level, its embeddedness in the minds of the key decision-makers - especially national judges - is crucial for the effectiveness of the whole system. However, little more can be done to push states to further implement the Convention. The CDDH suggests improving awareness among national decision-makers about the standards of the Convention, seeking expert opinions on the matters related to the standards of the Convention while passing legislation on the national level. Of course, all these measures are to be welcomed. However, their net value can be minimal in a situation where overall support for the Convention is decreasing while the political will to improve the standards of human rights protection domestically is declining. Having said that, improving national attitudes towards the Convention is clearly beyond the mandate or reach of the CDDH.

The CDDH found that the authority of the Court is mainly challenged due to its huge caseload and the quality of its case-law broadly understood. As to the former, the CDDH notes that the number of applications to the Court has decreased in the last couple of years. This news is not necessarily good. The negative publicity for the Court generated in some states in addition to the extremely high number of inadmissible or not even registered applications has undermined the enthusiasm of potential applicants for the Convention. Even applicants with genuine and serious human right issues might no longer apply to the Court. Of course, it is true that justice delayed is justice denied but the speed of procedures has to be carefully balanced against the raison d'être of the Court and the Convention, namely protection of human rights in Europe. The Brighton Declaration has suggested the time frame within which the ECtHR should deal with its cases: one year from introduction to communication and two years from communication to judgment on merits. At the same time the budget of the ECtHR has not been increased appropriately to handle these time periods. The annual budget of the Court is below 70 million euros. In comparison, the annual budget of the Court of Justice of the European Union with its much lighter docket of cases is more than 350 million. One should bear in mind that the ECJ does not have to deal with cases originating from such states as Russia, Ukraine, and Serbia which are responsible for a substantial part of backlog of the ECtHR. If the member states really wish the Court to become more effective, an increase of its budget is an absolute necessity.

According to the CDDH,  the quality of the case-law of the ECtHR is instrumental for the continuing authority of the Court. Here the experts of the CDDH considered improving the quality of the judges of the ECtHR, the quality of its registry and the consistency and coherence of the reasoning of the Court. For example, the issue of the election of judges was discussed and in the last decade the rigor and transparency of selecting of the candidates for the judicial positions at the level of the Council of Europe has improved substantially. Having said that, the key challenge for the quality of judges is at the national level and the CDDH and the Council of Europe in general has very limited capacity to impact on domestic decisions. None of the more radical changes were endorsed either due to the financial implications or due to the implications on the speed of the procedures under the Convention. One of the more far-reaching proposals is to ensure erga omnes effect of the judgments, meaning that the ECtHR judgments are not only binding on the respondent state but also on all other Contracting Parties. It will be hard to persuade the Contracting Parties to accept this proposal, but it could be transformed into a suggestion to formally inform the Contracting Parties about the important cases of the ECtHR. This suggestion was not supported by the CDDH.

It is true that the States’ proper implementation of the judgments of the ECtHR is the key to its authority and reputation. However, the CDDH acknowledged that those cases which are problematic in terms of execution cannot be implemented through any new formal procedures. The CDDH suggests that an ad hoc approach should be maintained meaning that the Committee of Ministers will have to develop strategies of execution on a case-by-case basis. Perhaps this is a sensible approach. However, the Department of Execution of Judgments needs appropriate resources to facilitate new demands. The number of lawyers working in this Department is just not adequate to deal with the growing number of cases required supervision.

Finally, the CDDH has discussed the place of the Convention in the European and international legal orders. This section is very brief and does not say much beyond the fact that interaction between the European Convention and other parts of the Council of Europe is unproblematic and interaction between the ECHR and other instruments of international law should be further examined.

Overall, the report mostly preserves the status quo. The key message of the post is that the Court is continuing business as usual. While the open call for proposals of the Council of Europe is an undoubtedly progressive and positive step, the fact that almost none of these proposals were expressly supported questions the effectiveness of the procedure. The report is very cautious and does not support any revolutionary ideas even those which would require limited amendments to the Convention and limited implications to the allocation of the resources. One can disagree about whether there is any need for more fundamental changes to the system and what the results of these changes might be. But what is absolutely clear is that the Court and the Department of Execution require more resources to serve their functions efficiently and effectively. 

Friday, 20 November 2015

Seminar on Procedural Dialogue in the ECHR System

It is still some time away, but good to already inform you of it: on 26 January, Nijmegen University is organising a seminar at the Europe House in The Hague. The aim of the seminar, entitled 'Procedural Dialogue in the European Convention on Human Rights System', is to discuss the ways in which procedural dialogue can be shaped through specific procedures, the Court’s judgments and domestic courts’ reactions. This is the programme: 

10:00-10:30        Registration, coffee & tea
10:30-10:50        Introduction
(L.R. Glas, Radboud University (RU))
10:50-11:10        Judicial dialogue and Protocol 16 – lessons from the European Union
 (J.H. Gerards,RU)
11:10-11:30        Dialogue with the domestic legislature (P. Leach, Middlesex University)
11:30-11:50        Discussion

Coffee & tea break

12:10-12:30        Dialogue through (negative) case-law
(B.E.P. Myjer, Free University Amsterdam and former ECtHR judge)
12:30-12:50        Dialogue and the execution of the Court’s judgments
(E. Lambert Abdelgawad, Université de Strasbourg)
12:50-13:10        Discussion

Lunch break

14:10-14:30        Dialogue, bundling cases and referring cases back
(A.B. Terlouw, RU)
14:30-14:50        Dialogue and procedural reform
(M. Kuijer, VU and Ministry of Security and Justice)
14:50-15:10        Discussion
15:10-15:30        Conclusions
(R.A.A. Böcker, Dutch Ministry of Foreign Affairs)

High tea

To register, please contact Ms. Charley Berndsen at c.berndsen at before 15 January 2016.

Thursday, 19 November 2015

ECHR Readings

Please find below a selection of a number of books, articles and research papers on the ECHR which have been published in the past year (some of which I had overlooked earlier, more to follow in later posts). Enjoy reading!

The newest issue of the International Community Law Review (vol. 17, nos. 4-5, 2015) includes two ECHR-related articles:

* Marta Szuniewicz, 'Problems and Challenges of the ECHR’s Extraterritorial Application to Law-Enforcement Operations at Sea' 
* Katarzyna Urszula Gałka, 'The Jurisdiction Criterion in Article 1 of the ECHR and a Territorial State' 

Other recent journal articles:

* Adamantia Rachovitsa, 'Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights', Leiden Journal of International Law, vol. 28, no. 4 (2015) pp. 863-885:

This article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

* Alexandra Timmer, 'Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law', American Journal of Comparative Law, vol. 63, no. 1 (2015) pp. 239-284:

The concept of stereotype is novel in the case law of the European Court of Human Rights. The ECtHR has started to refer to stereotypes in several recent judgments concerning, notably, race and gender equality. In contrast, anti-stereotyping has long been a central feature of both American and Canadian equal protection law. Offering a comparison of the legal reasoning of the ECtHR and the U.S. and Canadian Supreme Courts, this Article uncovers both the pitfalls and the potential of the stereotype concept to advance transformative equality.

And a number of books and book chapters:

* Octavian Ichim, Just Satisfaction under the European Convention on Human Rights (Cambridge University Press):

How effective is the European Court of Human Rights in dispensing justice? With over 17,000 judgments handed down, it is undoubtedly the most prolific international court but is it the most efficient when compensating the victims of a violation? This crucial but often overlooked question is the focus of this important new monograph which gives a clear, comprehensive and convincing demonstration of the negative impact, in terms of unpredictability and legal uncertainty, of the discretion used by the Court when it comes to the regime of reparation. It reveals the adverse influence of such a high discretion on the quality of its rulings - ultimately on the coherence of the system and on the Court's authority, and makes suggestions for improvement.

The book by Mads Andenas and Eirik Bjorge, A Farewell to Fragmentation. Reassertion and Convergence in International Law (Cambridge University Press 2015) includes:

* Dean Spielmann, 'Fragmentation or partnership? The reception of ICJ case-law by the European Court of Human Rights'
* Magdalena Forowicz, 'Factors influencing the reception of international law in the case law of the European Court of Human Rights'

The most recent volume of the German Yearbook of International Law (vol. 57, 2014) has just been published and includes:

* Mart Susi, 'Implied Constitutional Competence of the European Court of Human Rights' 

Finally, a working paper on SSRN, which may be of interest to many readers:

There is widespread and growing mistrust of the European Court of Human Rights (ECtHR) in the United Kingdom (UK). In response to what can be seen as the progressive ‘folk deviling’ of the ECtHR in the UK, the aim of this chapter is to explore how beliefs about the ECtHR are created and sustained. To achieve this aim, the chapter focuses attention on beliefs about the ECtHR that are expressed by members of the UK Parliament. Through an analysis of parliamentary debates, the chapter examines how parliamentarians discursively represent their beliefs about the ECtHR and how these beliefs come to achieve degrees of collective acceptance among MPs and Lords. As the analysis of parliamentary debates shows, the ECtHR is often depicted as a biased institution that poses a risk to the human rights of large sections of the UK population. If it is accepted that parliamentary discourse has an influence on wider public perceptions and opinions, then the beliefs expressed by parliamentarians that are outlined in this chapter should be of concern to anyone with an interest in encouraging a balanced and informed understanding of the ECtHR among the population of the UK.

Wednesday, 11 November 2015

Guest Commentary on Grand Chamber Judgment Perinçek v Switzerland

On the important Grand Chamber judgment of Perinçek v. Switzerland, I am happy to introduce a guest commentary by dr Uladzislau Belavusau, an expert on freedom of expression and an assistant professor at the Free University Amsterdam. In his comment, he contextualises this Swiss case of Armenian genocide denial. Here is his post, which has been written jointly for ECHRBlog and VerfassungsBlog:

Perinçek v. SwitzerlandBetween Freedom of Speech and Collective Dignity

On 15 October 2015, the Grand Chamber delivered its judgment in the Perinçek v. Switzerland case. Notwithstanding some minor variations in reasoning, the outcome in the Grand Chamber is practically identical to the lower chamber. The Swiss criminal provision applied in the context of the denial of Armenian genocide was, thus, again found irreconcilable with freedom of expression under Article 10 ECHR. I have previously commented on the chamber judgment in a blog post entitled “Armenian Genocide versus Holocaust in Strasbourg: Trivialisation in Comparison”. On the one hand, I have overall welcomed the Court’s decision to protect freedom of speech against state censorship and instrumental memory politics. On the other hand, I have expressed scepticism about the unconvincing way the Court has coined a hierarchy between the Holocaust and the Armenian genocide. Such a hierarchy inevitably echoes a sense of the symbolic injustice towards Armenian communities and schizophrenic governance of memory within the Council of Europe, where only Holocaust denial is exempted from the free-speech paradigm. Yet several aspects of the Grand Chamber’s judgment make the reasoning in Strasbourg even more controversial and require further scrutiny. In this short commentary, I offer a brief factual summary of the Perinçek case followed by a criticism of central findings by the Grand Chamber.   

Facts and Judgement

Doğu Perinçek a former leader of a Turkish workers party, made a number of controversial statements on several occasions during his visit to Switzerland in 2005, arguing that the Armenian genocide is “an international lie” by the “imperialists of the EU and US”. The courts in Switzerland found him guilty under the criminal provision prohibiting denial or gross trivialization of genocides. After exhausting all the procedural tracks before Swiss tribunals, dr. Perinçek brought his claim to Strasbourg. In its initial judgment (17 December 2013), the European Court of Human Rights found that the criminal measure against dr. Perinçek had disproportionately interfered with and thus violated his freedom of speech. In its Grand Chamber’s judgment, the Court has, thus, struck the difference between protection of dignity for the Armenian community (embraced under Article 8 ECHR) and freedom of speech for dr. Perincek (Article 10 ECHR).

The arguments of the Grand Chamber can be summarized as follows:

1) The applicant’s statements bore on a matter of public interest and did not amount to a call for hatred or intolerance (para. 229-241);
2) The context in which they were made had not been marked by heightened tensions or special historical overtones in Switzerland (242-248);
3) The statements could not be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland (para. 272-273);
4) There was no international law obligation for Switzerland to criminalise such statements (para. 258-268);
5) The Swiss courts appeared to have censured Perinçek simply for voicing an opinion that diverged from the established ones in Switzerland, and the interference with his right to freedom of expression had taken the serious form of a criminal conviction (para. 274-282).

The European Court of Human Rights is not a military tribunal and, therefore, was not expected to answer the question of whether mass massacres of Armenians in the Ottoman Turkey amounted to genocide. Nonetheless, the hearing before the Grand Chamber in January earlier this year looked like a perfectly theatrical trial with multiple actors and staged speeches attempting to advance various historical narratives. Even the year of this hearing is spectacular. 2015 marks the 100th anniversary of the tragic extermination of 1,5 million of Armenians in the Ottoman Turkey widely addressed as the “Armenian genocide”. While sadly enough, media attention was focused more on the fact that George Clooney’s wife represented the Armenian side, the Court’s building was surrounded by a huge group of demonstrators with Turkish and Azeri flags clearly orchestrating this event as their rehabilitation stage. It would be fair to say that the Court did not have any intention to facilitate such rehabilitation, as much as, for example, the US Supreme Court certainly did not want to rehabilitate Nazi atrocities when it justified parade with swastikas in a town in Illinois (Skokie, 1977). Yet, its extremely lengthy judgment – together with dissenting and concurring opinions comprising of 128 pages – definitely raises a number of questions and could be used for instrumentally by Turkish and Azeri nationalists.

Problematic Aspects in the Court’s Reasoning

The Grand Chamber has, therefore, come to the same outcome as the Court did in its  2013 decision, namely establishing a violation of freedom of expression. This outcome is good news for a community of historians mobilizing against state censorship on history. Elsewhere, I have argued that criminal measures against genocide denial make little practical or normative sense. However, the difference between the Holocaust and “the rest” of mass atrocities established by the ECtHR is not only normatively problematic, but in practice invites further speculation. Such speculation would foster a nationalistic Turkic identity and anti-Armenianism amongst Turkish and – after a recent military conflict over Nagorno-Karabakh – Azeri communities throughout the world.

The Court makes a difference between the supposedly neutral comments of Perinçek, on the one hand, and incitement to hatred, on the other hand. According to the Court, dr. Perinçek advanced his statements as anti-imperialist instead of anti-Armenian, taking a neutral tone on the relationship between Muslims and Armenians in the Ottoman Empire. Just a couple of years earlier, however, in the case of Leroy v. France (2008), the Court refused to accept a justification of a caricaturist drawing a parody on the terroristic attack in New York, who claimed that his picture – instead of glorifying the atrocity – was simply a condensed anti-imperialist message. On that questionable reasoning, not all Holocaust deniers express anti-Semitic messages. Yet the Court sees them as inciting anti-Semitism or glorifying the atrocities against Jews. To give another example, the Court has earlier found no violation of freedom of expression in a case where Germany imposed criminal sanctions on animal rights activists. They collaged together pictures from Nazi concentration camps with animals in cages, with the aim of raising awareness about the sufferings of animals. The Court’s neutral perception of Perinçek’s statements is therefore paradoxical.

Perinçek is an active member of the Talat Pasha Committee, an organization that is concerned with the rehabilitation of the central military criminal, responsible for the massacres of Armenians, Mehmet Talat Pasha (1874-1921). It remains enigmatic how an admirer of Talat Pasha may be less anti-Armenian than a neo-Nazi fan of Heinrich Himmler would be anti-Semitic. Perinçek argues that Turks did not want a massacre of Armenians, while Western and Russian imperialist forces provoked the Ottoman government. Similarly, many Holocaust deniers and anti-Semites suggest that the Nazis just wanted to collect Jews together to transfer them to Palestine.

What distinguishes those two scenarios? Perinçek has orchestrated his statements to initiate the case for revisionism before the highest European courts. He later unsuccessfully tried to repeat it in Greece, a travel-tactics familiar to a number of Holocaust deniers from the USA “guest lecturing” throughout Europe. Although mentioning the tragic case of Hrant Dink, a Turkish-Armenian activist assassinated in 2007 in Istanbul, the Court substantially disregards the specific atmosphere of denialism and gross violations of the rights of minorities in Turkey, moving central attention instead to Switzerland where – supposedly – no tensions are possible on anti-Armenian grounds. The Court has failed to acknowledge the existence of anti-Armenianism as a specific ideology prevalent amongst Turkish and Azeri nationalists, including those scattered in huge Turkish diasporas in Europe these days.

The Court found no international obligation to criminalize Armenian genocide denial, which is again an arguable point. Similarly, it would be very hard to deduce a strong and unequivocal international obligation to criminalize Holocaust denial under the International Covenant on Civil and Political Rights, mentioned by the Court. In para. 99, the Court summarises four divergent legal models existing within the Council of Europe with regard to genocide denials: some countries do not have a criminalising clause, others penalize just Holocaust denials, there are those who punish the denial of both Nazi and communist crimes, while there are also those punishing the Armenian genocide denial and denials of similar historical injustices. Almost twenty countries, including organizations like – ironically – the Council of Europe itself and the European Union, have recognized the Armenian genocide through various forms of soft law. The same month as the Grand Chamber’s decision came through, Paraguay, for example, which is neither too close to Armenia or Turkey to mark any tensions between them, has joined that list. While clearly, to recognize and to prohibit denial of a recognized fact are two different legal modes, the judgment exposes the divergent and, at places, contradictory governance of history in European law.


A couple of years ago the US Supreme Court heard a case involving a picket of the Westboro Baptist Church activists on the sidewalk close to the funeral of an American soldier who died in a vehicle accident in Iraq. The sect glorifies deaths of American soldiers explaining them, inter alia, by the liberalization of homosexuality in the USA. The demonstrators displayed placards with slogans such as “America is doomed”, “You are going to Hell”, “America hates you”, “Fag troops”, “Thanks God for dead soldiers”, etc. In its 2011 judgment of Snyder v. Phelps, the US Supreme Court has held this type of speech protected by the First Amendment.

Many would find this decision irreconcilable with the European legal context of militant democracies and the protection of dignity. Albert Snyder, the father of the killed marine, testified: “They turned this funeral into a media circus and they wanted to hurt my family. They wanted their message heard and they didn’t care who they stepped over. My son should have been buried with dignity, not with a bunch of clowns outside”. The majority opinion in this judgment answers to this: “Westboro believes that America is flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible [...]. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate”.

The problem with the Strasbourg judgment in Perinçek is not that the Court defends freedom of speech under Article 10 ECHR. Historical discussion should be exempted from instrumental state censorship in a democratic state, even if that implies protection of a “bunch of clowns outside” and “negligible contribution to public discourse”. The problem is that while acknowledging the dignity of the Armenian community under Article 8 ECHR, the Court fails to express the necessary outrage about Perinçek’s statements. This goes in clear contrast with US judges acknowledging the hideousness of the message, even if they find it protected (Skokie 1977, R.A.V. v.St. Paul 1992, Snyder v.Phelps 2011, etc.). In this judgment, Perinçek, in contrast, is positioned almost as a partisan of free speech. In combination with an extremely questionable hierarchy between the Holocaust and other genocides, this failure to distance from Perinçek – albeit rightly protecting his freedom of expression – leaves strikingly little to sustain the dignity of the Armenian victims. 

Tuesday, 10 November 2015

Commentary on Bouyid v Belgium

It is my pleasure to introduce a guest commentary on the Grand Chamber judgment of Bouyid v Belgium ( 23380/09 ) of last September. The commentary was written by a colleague here at Utrecht University, dr Stephen Riley, who is a postdoctoral researcher at the Ethics Institute in a project on human dignity and human rights. Here is his commentary: 

Case of Bouyid v Belgium (GC, 28 September 2015)
Stephen Riley

By a majority, the Grand Chamber found a violation of Article 3 following the slapping of two brothers held in police custody. The interest of the case lies in its extending the scope of ‘degradation’ but also in the problematic use of human dignity in the decision.     

There was a five-year history of conflict between members of the Bouyid family and the staff of a local police station. The applicants, brothers, had at separate times had altercations with police officers, been taken into custody, and been slapped by an officer after provocative or uncooperative behaviour. That the brothers had been slapped was corroborated by medical evidence. Given the special burden of proof applicable in detention cases (it is for the State authorities to cast doubt on the applicants’ account) the Grand Chamber accepted that a claim of mistreatment was justified and that the question of a Convention violation could be addressed.

The question for the Court was evidence of ‘degradation’. This requires injury or suffering of a minimum severity (para. 86). Analysis offered by a third-party argued that ‘severity’ is partially relative to circumstances, and situations of detention and vulnerability mean that acts like a slap to the face, which in other circumstances might be at the lower level of criminality, take on greater significance and gain sufficient ‘severity’ (para. 73). The Court itself asserted that circumstances can be such that an otherwise minor form of mistreatment becomes a violation of human dignity and can thereby be considered degrading (para. 87). In conjunction with the remaining evidence, the Court found “that the applicants’ dignity was undermined and that there has therefore been a violation of Article 3 of the Convention” (para. 102).  

In order to understand how human dignity was at issue, I will briefly reconstruct the judgment and dissent. The majority in the judgment held that, given certain background conditions (detention and vulnerability), what would otherwise only be a criminal act becomes harm to human dignity; that kind of harm, inflicted by an agent of the State, is necessarily a violation of Article 3 unless it is proven that the victim’s own actions justified the harm. The dissenting opinion, denying an Article 3 violation, asserted that given certain background conditions (detention and vulnerability) and a certain level of severity to the act itself what would otherwise only be a criminal act becomes harm to human dignity; that kind of harm, inflicted by an agent of the State, is necessarily a violation of Article 3 unless it is proven that the victim’s own actions justified the harm. That is, while the majority lists certain kinds of physical or mental ill-treatment that would be considered severe, they also include the bare idea of “showing a lack of respect for or diminishing [a detainee’s] human dignity” (para. 87) as a distinctive and supplemental instance of ‘severity ‘. In contrast, the dissenters claim that “there are forms of treatment which, while interfering with human dignity, do not attain the minimum level of severity required to fall within the scope of Article 3” (dissent para 5).

With respect to case as a contribution to Article 3 jurisprudence, the dissent raises important concerns. While not condoning mistreatment by State officials it asserts that it “is not for the Court to impose general rules of conduct on law-enforcement officers […]” (dissent para. 6) and it pointedly questions whether the threat of a single slap by a police officer would be enough to justify a non-refoulement decision (footnote 2). The thrust of the dissent however hinges on the significance and function of human dignity and the redundancy of the majority judgment’s uses of human dignity (dissent para. 4). Why should human dignity be considered redundant?

What engaged Article 3 was ‘harm to human dignity’ understood as unjustified harm, in a situation of detention, amounting to degradation. What, then, justifies the application of this standard? The majority judgment provides a catalogue of human dignity uses in international law (para. 45f). However, their function is not entirely clear. They act partly as prelude to discussion of more directly applicable instruments on torture and police procedure. They also help to justify more dramatic claims about the link between Article 3, human dignity, and the foundations of ‘civilisation’ (para. 81). Crucially, the Court implies that there is a special class of harm, or a special conception of wrong, implied by human dignity which is engaged whenever an individual is vulnerable (relative to the State) and harmed (para. 90). This is problematic and the basis of the charge of redundancy. How would such a class of harm be determined separately from our normal understanding of Article 3? After all, there may be human dignity harms that are not Article 3 violations but they would not be the concern of the Court unless they were violations of other Convention rights (in which case the relevance of ‘vulnerability’ and ‘harm’ would presumably be very different). Conversely, if harm to human dignity arises whenever there is detention and harm, then the scope of Article 3 protections seems to become unworkably wide.  

From this we can see in outline the problematic status of human dignity within the Court’s jurisprudence as a whole. Human dignity is often invoked as a foundational principle for human rights law, but denoting a special class of harm does not obviously fulfil this kind of foundational role. Put the other way around, cataloguing ways in which human dignity is foundational fails to justify a special link with Article 3 or a special class of harms; the link between human dignity and a special kind of degradation cannot be made from the preambular remarks of international human rights instruments alone. The growing body of Article 3 jurisprudence that does treat it as a special kind of prohibitive principle is increasingly problematic if it entails that any kind of mistreatment in detention is an Article 3 violation. There is, in essence, a disconnection between the foundational uses of human dignity in international law and the harm-centred jurisprudence of Article 3, a disconnection that only gets wider after a decision like Bouyid.

In sum, this judgment hinges upon a set of related claims that continue to inform and distort Article 3 jurisprudence. First, general international and regional materials on human dignity are broadly relevant to Article 3 cases, but they seem far less relevant than specific instruments on detention and mistreatment. Second, human dignity might be seen as a general principle counselling particular care with regards to those in custody, but it is not clear that human dignity provides for a specific kind of injury. Finally, Article 3 and human dignity together are treated cornerstones of ‘civilisation’ but such grand claims seem incongruous with the severity of the mistreatment found in a case like this.

Friday, 30 October 2015

Liber Amicorum Dean Spielmann

At the occasion of the farewell of President Dean Spielmann, a Liber Amicorum has been published entitled 'Liber amicorum Dean Spielmann. Mélanges en l`honneur de / Essays in honour of Dean Spielmann' by Wolf Legal Publishers. The beautiful tribute to the work of president Spielmann, available both in hardcover and softcover versions, contains an enormous amount of articles by fellow judges and other ECHR specialists, brought together in a volume which weighs over a kilo and numbers 720 pages. The majority of chapters focuses on Article 8 ECHR, the right to respect for private life, a right which he may hopefully abundantly enjoy after his retirement from the Court. It also includes a full bibliography of Spielmann's writings - except for the Court judgments and opinions that is. This is the abstract: 

The term of office of Dean Spielmann as President of the European Court of Human Rights is coming to a close. After graduating from the prestigious universities of Louvain and Cambridge, Dean Spielmann took up the practice of the law, at which he excelled, until his election as a judge of the Court in 2004. He was elected President of a Section in 2011 and Vice-President in 2012, becoming the President of the Court later that same year. During his term of office, he has developed relations with both supreme courts and other international courts and contributed to the Strasbourg Court’s high standing in the world, far beyond the continent of Europe. A man of dialogue, he has been from the outset an ardent advocate of Protocol No. 16 to the European Convention on Human Rights, which he has dubbed the “Protocol of dialogue”. This book brings together contributions from judges and former judges, at national and international level, from academics and from officials of the Court’s Registry, who wished to show their admiration and friendship for him.

Tuesday, 27 October 2015

ECHR Articles in New Issue of NQHR

The newest edition of the SIM-based Netherlands Quarterly of Human Rights (NQHR, No. 3, 2015)) features two articles on the European Convention:

* Janneke Gerards, 'The ECtHR’s Response to Fundamental Rights Issues Related to Financial and Economic Difficulties: The Problem of Compartmentalisation'

This paper presents an analysis of the case law of the European Court of Human Rights (ECtHR) on fundamental rights limitations for which the States have advanced ‘economic’ or financial justifications. The analysis discloses important differences in the ECtHR’s approach to such cases, which depend on the way they are framed and on which Convention articles they are based. It is submitted that such differences are difficult to maintain if they are not based on the substance and importance of the interests at stake. This paper therefore argues that the Court should develop a more uniform, ‘core rights’ based approach towards all rights claims which are related to the use of resources by States.

* Laurens Lavrysen, 'Strengthening the Protection of Human Rights of Persons Living in Poverty under the ECHR'

In recent years, the European Court of Human Rights has developed a significant jurisprudence which illustrates the added value of the European Convention on Human Rights (ECHR) in the field of poverty. Building on the findings of Amartya Sen’s “capability approach”, the article examines the extent to which the Court has grasped the nature of poverty as “capability deprivation”. It is argued that, due to polycentric concerns and a reluctance to overcome the negative / positive obligations and civil and political / social and economic rights dichotomies, the Court has only, to a limited extent, done so. Subsequently, three approaches are examined that could allow it to better take into account the findings of the “capability approach” and that could allow for enhanced protection of the human rights of persons living in poverty under the ECHR: endorsing a more complex perspective on the responsibility of the state; analysing poverty as a failure to provide substantive equality; and recognising the vulnerability of persons living in poverty.

Thursday, 22 October 2015

The Court's Multilingual Twitter

This month, the Court has started a Twitter account in a variety of languages which will bring news on publications on and translations of case-law a well as the HUDOC case-law database. The Twitter is called ECHRpublication and has gained over 500 followers in the first few weeks. The move is part of making the case-law translations (over 15,000 have been published in HUDOC since 2012 in almost 30 languages) more accessible. 

According to Court Registrar Erik Fribergh: “Over recent years the Court has stepped up its efforts to improve the understanding of the Court’s case-law especially in States where neither English nor French is well understood. With this account, and by addressing them in their own language, the Registry wishes to further assist legal professionals, public officials and NGOs in keeping abreast of developments in this area.”

The Twitter will also highlight translations of case-law guides, handbooks and factsheets which are published on the website of the Court. In addition, the Court still has a Twitter account with its press releases, which is for the overwhelming part in English and French. 

Thursday, 15 October 2015

Lecture by Court's President on Judicial Dialogue

Earlier this week, the President of the European Court of Human Rights, Dean Spielmann, in one of the last weeks of his term, delivered the Thomas More lecture at Lincoln's Inn in London. The lecture, entitled "Whither Judicial Dialogue", president Spielmann argues for the importance of dialogical mechanisms between European and national judges (and between the two highest European courts) both in formal ways, through case-law) and informally through face-to-face meetings. This should not only be done in the classical ways - national judges in case-law formulate reactions to European judgments and vice versa - but also through Protocol 16 (allowing for advisory opinions and so far not yet entered into force due to the small number of ratifications) and through the recently created network of superior courts. This network can not only help the highest national courts to stay up-to-date with Strasbourg case-law but may also help, the other way around, Strasbourg in its comparative-law endeavours which it frequently undertakes. Spielmann also pointed to the use of Article 46, para 3 ECHR, on the elucidation of judgments, which may not only be useful to domestic executives, but also to domestic courts. The Court's President, in the lecture, called judicial dialogue  "a necessity, a corrective and an incentive" and even "the golden key" to the future protection of human rights. The full lecture can be found here.

Friday, 9 October 2015

Guest Blog: Court Judgment on Electoral Irregularities in Azerbaijan

It is a pleasure to introduce a guest post by one of my colleagues, Paulien de Morree, a PhD researcher here at Utrecht University. She has written a short commentary on the judgment of the Court of this week in Gahramanli and others v. Azerbaijan which deals with problems in the electoral process. please find her short commentary below:

Court reprimands Azerbaijan for continually failing to adequately address complaints about electoral irregularities

Paulien de Morree

Yesterday, the European Court of Human Rights issued a judgment concerning the 2010 parliamentary elections in Azerbaijan in the case of Gahramanli and other v. Azerbaijan (8 October 2015, appl. no. 36503/11). The applicants, who were all candidates for various opposition parties, alleged that due to numerous irregularities the elections in their constituency had not been free and fair. Because of the domestic authorities’ failure to adequately address their complaints, the Court found a violation of their right to stand for election guaranteed in Article 3 of Protocol No. 1 (para. 89).

The main issue submitted by the applicants concerns the lack of impartiality of the electoral commissions. One-third of the members of these commissions at all levels, including the Central Electoral Commission (CEC), are nominated by or on behalf of the parliamentary-majority party. In addition, one other member who is formally unaffiliated with any political party, is appointed “in agreement” with the majority party. Essentially, pro-ruling forces therefore have a relative majority vis-à-vis the representatives of other political parties in all electoral commissions (para. 75).

Normally the Court does not go into an evaluation of the compatibility of a national system of electoral administration with Convention requirements in a way that goes beyond the case at hand. But here, given the particular context of the issue, the Court found that “the method in question was  one of the systemic factors contributing to the ineffectiveness of the examination by the CEC of the applicants’ election-related complaint in the present case” (para. 79). 

The Court referred to observations by the Organisation for Security and Co-operation in Europe (OSCE) and concerns of the European Commission for Democracy through Law of the Council of Europe (Venice Commission) regarding the lack of impartiality of the electoral commissions (see in particular the final report of the OSCE/ODIHR Election Observation Mission on the parliamentary elections of 7 November 2010). In addition, the Court recalled that in the past it has found violations of Article 3 of Protocol No. 1 in numerous election-related complaints against Azerbaijan regarding arbitrary decisions by electoral commissions in relation to opposition candidates (see for example ECtHR 8 April 2010, Namat Aliyev v. Azerbaijan, appl. no. 18705/06; ECtHR 30 September 2010, Kerimova v. Azerbaijan, appl. no. 20799/06; ECtHR 10 January 2012, Mammadov v. Azerbaijan (no. 2), appl. no. 4641/06; ECtHR 10 January 2012, Hajili v. Azerbaijan, appl. no. 6984/06; ECtHR 21 February 2012, Khanhuseyn Aliyev v. Azerbaijan, appl. no. 19554/06; 25 September 2014, Karimov v. Azerbaijan, appl. no. 12535/06). Yet, so far the issue continues to not be adequately addressed by the Azerbaijani government. In that context, the Court strongly encourages the Azerbaijani authorities to reform the composition of the electoral commissions in order to improve the effectiveness of the examination of election-related complaints.
The relevance of this call for reform of the electoral commission is emphasised by the fact that new parliamentary elections in Azerbaijan will take place on 1 November. In the light of these upcoming elections, the Parliamentary Assembly of the Council of Europe recently adopted a Resolution calling on the Azerbaijani authorities “to take the necessary measures to avoid the shortcomings highlighted during previous elections” (Resolution 2062(2015) The functioning of democratic institutions in Azerbaijan” of 23 June 2015, par. 4). In the build up to the elections, a Needs Assessment Mission of the OSCE has visited Azerbaijan in August. This Mission yet again reported concerns about the candidate registration process, the lack of respect for the fundamental freedoms of members of the opposition, the limited access to pluralistic views and impartial information and the lack of confidence in the independence of electoral dispute resolution bodies (Report of the OSCE/ODIHR Needs Assessment Mission, 31 August 2015, at 2). All in all, these preliminary developments are far from comforting on whether the 2015 elections will show much democratic improvement.