Thursday, 28 September 2017

ECHR Papers on SSRN

A number of authors have recently posted interesting ECHR-related papers (either as drafts or as pre-publication forthcoming articles in journals) in the online repository SSRN. These include:

This paper analyses the question of relative authority and separation of powers with regard to the European Court of Human Rights (ECtHR). Focus is on the specific processes that might perpetuate and even bolster authority in complex regimes of global governance such as the ECtHR. Building on a previous work on the variable authority of ICs, and notably how contexts shape that authority, the paper is particularly interested in how inter-institutional processes and feedback mechanisms operate in practice and create workable ensembles of institutions exercising relative authority. The chapter’s empirical analysis focuses on four instances of law-politics interfaces in the evolution of the ECtHR. It highlights particular moments in which the authority of the ECtHR has been challenged and how such challenges have either been overcome or resulted in insolvable collusions between the Court and the Member States. The analysis concludes that the current informal system of checks-and-balances in some cases is insufficient for avoiding clashes over the Court’s interpretations of the ECHR. Against the background of the empirical analysis, the paper develops original proposals for institutional reform that might help create better feedback loops in the area of European human rights. These include a different role for the Committee of Ministers, a greater participation and transparency with regard to proceedings before the Court, and the introduction of a form of appeals system. All of these proposals can be introduced in the current system with only minor amendments to the existing framework.

The issue of causation has been surprisingly overlooked in the area of international human rights law. The objective of this article is to fill this gap by investigating how the ECtHR finds causal connections between harm and state omissions within the framework of positive obligations. By engaging with causation, this article seeks to partially address the widely voiced concerns about the indeterminacy that clouds positive obligations in the case law. Four main arguments are articulated. First, assessments whether the state knew, or ought to have known, about the (risk of) harm, whether demanding state action is reasonable and whether harm is caused by state failures, are merged and affect each other in the enquiry as to whether the state has failed to fulfill its positive obligations. Second, the level of state control structures lines of causation. Third, since the question as to how much control the state should have could imply normative judgments in which the Court might not want to see itself implicated, and since empirical and epistemological uncertainly might hamper assessments of causation, the Court has recourse to techniques to avoid direct resolution of these normative issues and uncertainties. Two such techniques are discussed: domestic legality and national procedural guarantees. Finally, even in cases where omissions might be causative to harm, additional considerations might militate against finding the state responsible under the ECHR: reasonableness, no immediacy of the harm and no systemic failures.

* Shai Dothan (Copenhagen University), ‘Judicial Deference Allows European Consensus to Emerge’:

The European Court of Human Rights (ECHR) searches for human rights policies that are adopted by the majority of the countries in Europe. Using a doctrine known as "emerging consensus," the court then imposes these policies as an international legal obligation on all the countries under its jurisdiction. But the ECHR sometimes defers to countries, even if their policies fall short of the standard accepted by most of the countries in Europe. This deference is accomplished by using the so-called "margin of appreciation" doctrine. Naturally, emerging consensus and margin of appreciation are often conceived as competing doctrines: the more there is of one, the less there is of another. This paper suggests a novel rationale for the emerging consensus doctrine: the doctrine can allow the ECHR to make good policies by drawing on the independent decision-making of many similar countries. In light of that, the paper demonstrates that a correct application of the margin of appreciation doctrine actually helps emerging consensus reach optimal results, by giving countries an incentive to make their policies independently.

An important ‘stress test’ for regional human rights courts would be to see how well such courts perform when faced with authoritarian, human rights-violating regimes that they are supposed to hinder or constrain. These states are not only subjects of the court, but also its masters insofar as they enjoy various forms of control and accountability mechanisms that may constrain the court’s independence. The article argues that, at least in the case of the European Court of Human Rights (ECtHR), its precarious ‘constrained independence’ should be modified to enhance its impact even under such circumstances. Such changes could strengthen the ECtHR’s impartial and independent role without running the risk of turning it into a so-called ‘juristocracy’ - subjecting European states to the arbitrary rule of international judges.

This article discusses to what extent and how the European Court of Human Rights (ECtHR) has initiated and engaged in domestic judicial reforms. It shows that the judgments of the Strasbourg Court, rather than having effects only with respect to the individual whose rights have been violated, have much deeper structural effects in the design and operation of domestic judicial systems. This article argues that this phenomenon goes rather unnoticed, but it has deep implications for both the developing and developed European democracies. To demonstrate this phenomenon, this article assesses the impact of the ECtHR on three judicial design issues. First, it illustrates how the ECtHR has challenged the role of the advocates general. Second, it explains how the ECtHR has gradually curbed the jurisdiction of military courts both over civilians and over military officers, which has brought these courts to the brink of their abolition. Finally, it outlines how the ECtHR in its judgments regarding the disciplining of judges empowers the judiciary at the expense of other political institutions within the State. Based on the analysis of these three judicial design issues, we conclude that the Strasbourg Court is affecting the internal architecture of domestic judiciaries as it gradually endorses the unification of court administration and changes the power structures within the judiciary.

Tuesday, 19 September 2017

Book on ECHR Case Files

In the same theme of last week's book announcement, another recent book also offers practical insights on how to conduct a case, whether as applicant or third party intervener. Lize Glas (Radboud University Nijmegen) has published ECHR Case Files.The case files of the lawyer and of the intervener before the European Court of Human Rights with Ars Aequi publishers. 

Using two concrete cases - Jaloud v. the Netherlands and S.A.S. v. France - the book takes the reader through all stages of a procedure, explaining how to use and submit the various documents necessary in a case. A very useful how-to book. This is the abstract:

'Ars Aequi Procesdossiers (case files) are written primarily to give the reader insight into different legal procedures. Relying on real case files, it is explained step by step how an actual procedure develops. The Ars Aequi Procesdossiers contain original procedural documents which, together with the accompanying text, draw the reader’s attention to the main features of the relevant laws. In this way, the material is brought to life.   

This volume describes the application and intervention procedure before the European Court of Human Rights. Prior to presenting the case files, the Court’s organisation and procedure is introduced and the rules applicable to the application and intervention procedure are described in some detail. The documents making up the case files include correspondence of the applicant, the intervener and the Court, as well as decisions, judgments and related procedural documents. The documents are preceded by a short introduction explaining to which stage of the procedure a document belongs.'

Friday, 15 September 2017

New Edition of Taking a Case to the ECtHR

This Summer, Oxford University Press has released the fourth and revised edition of Taking A Case to the European Court of Human Rights, the much appreciated handbook written by professor and practitioner Philip Leach (Middlesex University and European Human Rights Advocacy Centre). It covers both all phases of Strasbourg proceedings, from lodging an application to the enforcement of judgments. It covers all the key reforms (both those instituted and those pending) since the last edition of 2011. Through its index, its table of cases and its clear and logical structure, the book is an excellent and very up-to-date way into the judicial practice and case-law of the Court. in doing so it is both a how-to-do for practitioners as well as a thorough introduction to the system for students and researchers. Congrats, Philip! This is the abstract:

'This book provides comprehensive coverage of the law and procedure of the European Court of Human Rights. It incorporates a step-by-step approach to the litigation process, covering areas such as lodging the initial application, seeking priority treatment, friendly settlement, the pilot judgment procedure, just satisfaction, enforcement of judgments, and Grand Chamber referrals.

This new edition has been fully revised to take account of the latest developments in the Court's practice since 2010, including: the introduction (in 2014) of a mandatory application form; the updated Court Rules and practice directions; a more expansive approach to interim measures; the application of the 'no significant disadvantage' admissibility test and further applications of the exhaustion of domestic remedies rule and the six months' time limit; the steep rise in the use of unilateral declarations in striking cases out; developments in the use of 'Article 46' and pilot judgments; and the more extensive application of non-pecuniary measures of redress (including reinstatement to employment, disclosure of information and the protection of witnesses).

This edition includes an expanded and up-to-date article-by-article commentary on the substantive law of the European Convention. Issues covered by the recent case-law include secret rendition, restrictions on in vitro fertilization, medical mistreatment, the treatment of migrants at sea and asylum procedures, states' extra-territorial jurisdiction, same-sex partnerships, and discrimination. There is new law on the rights of suspects, defendants and life sentence prisoners, and the duties owed to the victims of domestic violence, domestic servitude, and human trafficking. With such vast coverage and accessibility, this book is indispensable for anyone practising in this field.'

Monday, 4 September 2017

New Book on Third Party Interventions

Third party interventions are a key way for the European Court of Human Rights to receive information beyond the input it receives from the parties in the procedure (applicant and state). How influential such interventions actually are was until now a matter of educated guesses for Strasbourg Court watchers. But now, there is a study which may shed some empirical light on the issue. Nicole Bürli (currently human rights adviser with the World Organisation Against Torture) has just published Third-Party Interventions before the European Court of Human Rights with Intersentia. As a thorough and systematic overview, it offers great insights in how such interventions have worked in practice and how different types of interventions should be distinguished. This is the outline of the book:

'Over the past decades the European Court of Human Rights has been increasingly engaged in constitutional decision-making. In this time the Court has decided whether abortion, assisted suicide, and surrogate motherhood are human rights. The Court’s judgments therefore do not just affect the parties to a particular case, but individuals, other member states, and often European society at large. Unsurprisingly, a variety of entities such as non-governmental organisations, try to participate in the Court’s proceedings as third-party interveners. Acknowledging a certain public interest in its decision-making, the Court accepted the first intervention in 1979. Since that time, interventions by individuals, member states and non-governmental organisations have increased. Yet despite this long-standing practice, third-party interventions have never been fully theorised. 

Third-Party Interventions before the European Court of Human Rights is the first comprehensive and empirical study on third-party interventions before an international court. Analysing all cases between 1979 and 2016 to which an intervention was made the book explores their potential influence on the reasoning and decision-making of the Court. It further argues that there are three different type of intervention playing different roles in the administration of justice: amicus curiae interventions by organisations with a virtual interest in the case which strengthen the Court’s legitimacy in its democratic environment; member state interventions reinforcing state sovereignty; and actual third-party interventions by individuals who are involved in the facts of a case and who are protecting their own legal interests. As a consequence, the book makes a plea for applying distinct admissibility criteria to the different type of interventions as well as a more transparent procedure when accepting and denying interventions.

Dr Nicole Bürli has been a human rights adviser with the World Organisation Against Torture since 2014. Prior to this, she was a research associate at the University of Zurich (2008–2012) and a visiting fellow at the University of Copenhagen (2012) and the University of Cambridge (2013). Nicole Bürli holds law degrees from the University of Bern and the University of Zurich.'