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 ukconstitutionallaw.org/blog (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)].

Wednesday, 13 August 2014

New Book on Equality in European Human Rights Law

Charilaos Nikolaidis has published a new book on equality with Routledge. It is entitled 'The Right to Equality in European Human Rights Law. The Quest for Substance in the Jurisprudence of the European Courts'. This is the abstract:

A right to equality and non-discrimination is widely seen as fundamental in democratic legal systems. But failure to identify the human interest that equality aims to uphold reinforces the argument of those who attack it as morally empty or unsubstantiated and weakens its status as a fundamental human right. This book argues that an understanding of the human interest which equality aims to uphold is feasible within the jurisprudence of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ).

In comparing the evolution of the prohibition of discrimination in the case-law of both Courts, Charilaos Nikolaidis demonstrates that conceptual convergence within the European Convention on Human Rights (ECHR) and the EU on the issue of equality is not as far as it might appear initially. While the two bodies of equality law are extremely divergent as to the requirements they impose, their interpretation by the international judiciary might be properly analysed under a common light to emphasise the substantive dimension of equality in European Human Rights law.

Tuesday, 12 August 2014

New ECHR Readings

With the Court issuing its newest judgment today in a group of cases on British prisoner voting rights (violation found but judgment itself as sufficient just satisfaction, so no monetary award) the very short Strasbourg summer hiatus in issuing judgments - less than one and a half week - is already over. In preparation for a new season of judgments from the Court, here are a number of new and recent ECHR readings:

*  T. Schilling, 'On equal footing: the participation rights envisaged for the European Union after its accession to the European Convention on Human Rights', Human Rights Law Review, vol. 14, no. 2 (2014) pp. 197-229.

* C. Bezemek, 'Services exacted instead of compulsory military service: the structure of the "prohibition of forced or compulsory labour" according to article 4(2) of the ECHR', European Human Rights Law Review, no. 3 (2014)  pp. 263-271.

* L. Peroni, 'The European Court of Human Rights and intragroup religious diversity: a critical review', Chicago-Kent Law Review, vol. 89, no. 2 (2014) pp. 663-688.

* Koen Lemmens, 'Larvatus prodeo? Why Concealing the Face can be Incompatible with a European Conception of Human Rights', European Law Review, vol.39, no. 1 (2014), pp. 47 - 71. 

And finally, my older article on the pilot judgment procedure ('The pilot judgment procedure at the European Court of Human Rights: possibilities and challenges' - original can be downloaded on SSRN) has been translated into Ukrainian and has been published in the legal journal Law of Ukraine, no. 3 (2013) pp. 303-317. 

Monday, 11 August 2014

Violation of Religion Rights in Hungary Judgment

Back from the summer break, I am starting off with guest post of one of the regular contributors to the ECHR blog, professor Renáta Uitz of Central European University. She has written an extensive commentary to shed light on the Court's religious registration case Magyar Keresztény Mennonita Egyház and Others v. Hungary. This judgment from before the summer fits in a line of recent judgments finding violations in situations created by the current government. It is important to note that Hungary has requested referral of the case to the Grand Chamber, for new consideration - a request which is now pending. Professor Uitz argues below why such a referral is unnecessary. Here is the guest post:


Worthy of a second look? The Chamber judgment in the Hungarian church re-registration case
by Renáta Uitz

Introduction

In recent months, the ECtHR has found several aspects of Hungary’s recent constitutional reform to violate the Convention. The judgments of this spring covered issues such as the removal of the former chief justice from office through constitution-making (Baka v. Hungary), the introduction of life imprisonment without parole (Magyar László v. Hungary) and also the new legal regime on the registration of religious communities (Magyar Keresztény Mennonita Egyház and others v Hungary). These judgments should not have come as a complete surprise to the government, since on a number of key issues the ECtHR reinforced the earlier findings of the Venice Commission. The ECtHR judgments nonetheless provided a handy opportunity for the newly reelected Conservative-Christian government to sound anti-European rhetoric in the heat of the European parliamentary elections. On account of the judgment in the church registration case the secretary of state in the Ministry of Justice was reported by the press to have said that the ECtHR cannot require a member state to change its laws, as only the European Commission can do so. It was in this spirit that the Hungarian government decided to turn to the Grand Chamber against the judgment on the church registration scheme. With the government’s request pending, it is time to reflect on what is novel or unusual in the Chamber judgment that may trigger review by the Grand Chamber.

Admittedly, the fact pattern of the Hungarian church re-registration case is highly politicized, though the routine is not entirely unprecedented: most famously, Russia required previously recognized churches to re-register under more stringent conditions in the 1990s. The leading cases of the ECtHR on church re-registration and de-registration originate from a wave of cases arising from this Russian reform attempt.

The old and new systems

In 2011, in the course of the making of the new Fundamental Law (constitution), Hungary fundamentally altered its church registration regime. As a result of the reform almost all previously registered churches lost their church status and had to seek re-registration (or face the loss of their special legal personality tailored to the needs of religious communities). Re-registration to church status is now granted by a discretionary decision of Parliament, with the exception of the few churches that were recognized by Parliament ex lege. The latest amendment to the 2011 church law was adopted in August 2013, in response to a decision of the Constitutional Court (6/2013 (III. 1.) AB) finding key provisions of the 2011 unconstitutional and also to account for the objections of the Venice Commission on the Fourth Amendment of the new Fundamental Law, which inter alia, criticized the constitutional foundations of Hungary’s newly minted church registration regime.

The transformation of the 2011 church law is described in the ECtHR’s judgment on almost 30 pages. According to the latest version previously legally registered churches may receive entry-level recognition as special religious associations from the Budapest High Court upon the request for 10 members, while the privileged status of ‘incorporated church’ is granted by Parliament in a discretionary decision. Conditions for the privileged status include proof of 100 years of international operations, or 20 years of domestic presence and a membership of 0.1 per cent (roughly 10,000 souls) of the population. In accordance with the amended provisions of the Fundamental Law Parliament may grant ‘incorporated church’ status to those religious groups (i.e. previously registered churches) with which it intends to cooperate in order to further community goals. Key differences between ‘incorporated churches’ and religious associations include tax benefits and access to public funds. These differences are critical as under the 1990 law, at least formally, all recognized churches had the same legal status in these respects.

Note that these criteria for a two-tier system of church registration replace the conditions of the 1990 church law which permitted 100 believers to seek recognition of their religious community from a court of law, without any further discretionary assessment of fitness. Of the 406 churches which had been registered under the 1990 law only 32 made it into the exclusive club of ‘incorporated churches’ selected by Parliament under the new 2011 church law: of these 14 churches were admitted ex lege, while others were readmitted to church status as a result of parliament’s discretionary decision.

The rationales advanced by the government in support of the reform of the church registration regime included the need to curb so-called ‘business sects,’ to bring order to the burgeoning field of religious organizations, and to enable parliament to exercise its sovereignty in deciding “who is a church and who is not.”

The Judgment

In the case the ECtHR defined the issue narrowly, and – instead of assessing the new church registration regime as a whole – it concentrated on the loss of privileges that resulted from the applicant religious communities’ losing their previously registered church status under the new law (see esp. paras. 55 and 95). The reasons why the new Hungarian church registration regime was found to violate the Convention are rather straightforward. A number of basic concerns have already been addressed by the Venice Commission in its two opinions on Hungarian constitutional and legal developments, and are also firmly grounded in the settled case law of the ECtHR.

The Chamber reiterated that access of religious communities to legal entity status is a matter of freedom of religion as well as freedom of association (Articles 9 + 11, paras. 44-45), that the state has to remain neutral and impartial in exercising its regulatory power in matters of religions (para. 76), and that when requiring previously registered churches to re-register, the government has to offer compelling reasons (para. 79 and 84). The Court emphasized that the state’s power “to protect its institutions and citizens from associations that might jeopardize them must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom” (para. 79).

The Court’s reasoning is worthy of closer attention, as on account of these familiar basic points the judgment pulls several threads of the jurisprudence together, and elucidates premises behind some key concepts in the case law. In doing so, the Court importantly (1) explained the state’s tasks in granting legal entity status to religious communities in light of the impact of state regulation on individual aspects of religious freedom, (2) explored the deep-seated connection of the requirement of state neutrality and impartiality with the prohibition of discrimination under the Convention, and (3) reiterated the organic connection between access to legal entity status and some other rights and opportunities afforded to churches under national law such as benefits and funding. A careful inquiry into earlier case law suggests that these considerations are hardly novel, indeed, the seeds of these findings have been planted for many years in the jurisprudence of the Court on freedom of religion.

Commentary

First, the Court gave a textured reading to the significance of granting legal entity status to religious communities, when it insisted that legal recognition by the state cannot portray religious communities (in a lesser status) in an unfavorable light or as suspicious sects, as such a portrayal also affects the religious freedom of individual believers (para. 93). The Court also emphasized that without proper recognition religious communities may feel “not more than tolerated – but not welcome” (para. 94), and that the lack of proper state recognition may result in amplification of prejudices. Further the Court added that when funding is distributed to religious communities the state “cannot produce a situation in which the adherents of a religious community feel second class citizens, for religious reasons, on account of the less favorable State stance on their community.” (para. 109)

According to the separate opinion of Judges Spano and Raimondi, it is irrelevant whether adherents of a religion feel to be second-class citizens as a result of the de-registration of their former church, so long as their community of believers receive legal entity status (separate opinion, para 13). In this respect the position of the dissenters appears to run counter to the longstanding case law of the Court, as the ECtHR has long recognized that “[w]here the organisation of the religious community was at issue, a refusal to recognise it has also been found to constitute interference with the applicants’ right to freedom of religion under Article 9 of the Convention” (Religionsgemeinschaft de Zeugen Jehovas and others v. Austria, para. 62, citing Metropolitan Church of Bessarabia and Others v. Moldova, para 105).

Note, furthermore, that the Court’s sensitivity to the negative impact of governmental disapproval of certain religious groups is nothing new or unprecedented in the case law, either. For instance, in Förderkreis v Germany the Court found that while the government’s labeling of the applicants as a ‘youth sect’ and ‘psycho sect’ did not prevent the applicants from operating, it generated a sufficiently negative consequence to be considered an interference (para. 84). Most recently, the Grand Chamber clearly acknowledged in its judgment on the burqa ban (S.A.S. v. France) that the ban had a negative impact on the women concerned (para. 146), adding that “the State which enters into a legislative process of this kind takes the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance” (para. 149). Thus, the Court’s attention on the broader societal impact of state regulation on attitudes towards religious communities and believers, and the risk state regulation entails, is clearly not novel.

Second, when assessing the Hungarian re-registration requirement from the perspective of state neutrality and impartiality, the Court’s emphasis is on the prohibition of arbitrariness, a concept which is linked at its core to the prohibition of discrimination. The ECtHR’s main concern in the Hungarian case is that in the Hungarian regime “the granting of refusal of church recognition may be related to political events or situations. … A situation in which religious communities are reduced to courting political parties for their favorable votes is irreconcilable with the State’s neutrality requisite in this field.” (para. 102) When being deeply concerned about the open political discretion of the Hungarian parliament in the process of distribution church status in particular cases, the Court echoed the already familiar concerns of the Venice Commission.

It is important to note at the outset that recent judgment against Hungary does not deal in any manner with whether parliamentary recognition of churches violates the Convention per se: the emphasis in the Hungarian case is on the open political discretion of the body which is taking the decision on registration. The ECtHR had no objection to a member state having a multi-level church registration system or that parliament was in charge of admitting religious communities to the highest status reserved (see para 100). The reason why the Hungarian regime violates the Convention is the deeply political nature of the process - that the body which gets to decide on incorporated church status is the Hungarian Parliament is not decisive in and of itself.

On a more abstract level, the Court’s reading of the prohibition of arbitrariness, as a corollary of the requirement of neutrality and impartiality in clear non-discrimination terms, but without reference to Article 14 is certainly an interesting development. It is worth pointing out, however, that in doing so the Court did not depart from familiar elements of the jurisprudence in cases where Article 9 is read in conjunction with Article 14. At best, the reasoning is seen in this respect as a welcome step towards as a deeper reading of Article 9, and it certainly does not constitute a departure from established case law.

Third, in the Hungarian case the Court read the de-registration of previously registered churches in close connection with material advantages that were lost as a result of said de-registration. Dissenting justices Spano and Raimondi argue that the majority is misguided in seeing an interference in the case at all, as the “reclassification” of previously registered churches does not prevent the affected religious communities from manifesting their religious freedom (separate opinion, para. 12). Thus, unlike the majority, the separate opinion reads this case as one on the withdrawal of material benefits, taking the de-registration component out of the picture (and calling it reclassification). Since de-registration of previously recognized church status was the very means used by the Hungarian government to withdraw material benefits (or at least the potential thereof) from literally hundreds of churches, it is difficult to see how these two aspects of the claim would not be connected.

It is also worth pointing out that grievances related to lack of entity status and material benefits are often intertwined, and that the Court has treated them to be indistinguishable before.  The lack of such a distinction was central to the ECtHR’s judgment e.g. in Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) v. Bulgaria where the Court found the lack of legal recognition of the Bulgarian Orthodox Church’s breakaway faction not distinguishable from the property dispute before the ECtHR (para. 174). In Religionsgemeinschaft de Zeugen Jehovas and others v. Austria, in a case concerning acceptance to a higher level entity status, the Court noted that under Austrian law, religious societies enjoy privileged treatment in many areas. These areas include exemption from military service and civilian service, reduced tax liability or exemption from specific taxes, facilitation of the founding of schools, and membership of various boards. Given the number of these privileges and their nature, in particular in the field of taxation, the advantage obtained by religious societies is substantial and this special treatment undoubtedly facilitates a religious society’s pursuance of its religious aims.” (para 92). Most recently in The Church of Jesus Christ of Latter-Day Saints v. the United Kingdom, a tax exemption case, the financial claim and the violation of applicant’s manifestation of freedom of religion (Article 9 and 14) were said by the Court to be indistinguishable (para. 38).

The jurisprudence has solidified in recent years on requiring members states to provide rights to funding and other advantages to religious communities in a non-discriminatory fashion (for references, see para 107). The requirement of non-discrimination is not affected by the fact that there is no right to state funding for religious organizations under Article 9 (Ásatrúarfélagið v. Iceland (dec.)). However, according to the standing case law of the ECtHR: once a member state “has gone beyond its obligations under Article 9 of the Convention in creating such rights cannot, in the application of those rights, take discriminatory measures” (Savez crkava “Riječ života” v. Croatia, para. 58).

The one novelty which the Court added to its longstanding jurisprudence in this respect is the conclusion that since benefits cannot be granted in a discriminatory fashion, they cannot be withdrawn in a discriminatory manner either (para. 107). It appears especially significant for the Court that the funding re-distributed by the Hungarian state concerned the outsourcing of public interest tasks and thus was not funding for faith-based operations (see para. 109).

The separate opinion takes issue with this conclusion, arguing that with taking the prohibition of discrimination to apply not only to the distribution of funds, but also to the “withdrawal of previously afforded material benefits” the majority has expanded Article 9 to previously unseen areas (separate opinion, para. 14). The dissent’s ultimate objection is not that withdrawal of funds was treated similarly to the awarding of funds. Rather, the dissenters object because the majority has reached this conclusion on the basis of Articles 9+ 11, and without taking into account Article 14.

It is worth recalling, however, that although applicants submitted a separate complaint under Articles 9+11 in conjunction with Article 14, due to the indivisibility of the claims on the impact of the applicant’s de-registration as a previously recognized church, the Court decided to treat their complaint under Articles 9+11, reading a thick non-discrimination requirement into the principles of neutrality and impartiality.

Conclusion


In light of the above overview, it appears that although the Court added texture to its long-existing jurisprudence on the standards applicable to the de-registration and re-registration of previously registered churches, it did not depart from its long-standing case law. The novelties of the Chamber judgment are best seen as resulting from an exercise in which already familiar dots are connected in new ways due to the peculiarities of the facts of the case. This comprehensive treatment of the applicants’ claims is a much welcome development as it offers insights into the deeper considerations informing the judgment of the Court, but they certainly does not bring unexpected twists to settled jurisprudence that would warrant consideration by the Grand Chamber. Thus, while the discontent of the Hungarian government is understandable as the Court has ruled against Hungary in several cases lately, the judgment in the Hungarian church re-registration case is hardly an unforeseeable surprise upsetting the settled jurisprudence of the Court.

Thursday, 10 July 2014

Summer Break

This blog is taking a summer break. No posting in the weeks to come. I will be back in August and wish all of you who have it too a very good summer!

Wednesday, 9 July 2014

New ECHR Readings


Please find below an overview of recent and less recent (but not yet mentioned on this blog) literature on the European Convention and the European Court of Human Rights:

* N. Bratza, 'Living instrument or dead letter - the future of the European Convention on Human Rights', European Human Rights Law Review, no. 2 (2014) pp. 116-128.
* And in the same issue: C. Draghici, 'The Human Rights Act in the shadow of the European Convention: are copyist's errors allowed?', pp. 154-169. 

* E. Bribosia, I. Rorive and L. Van den Eynde, 'Same-sex marriage: building an argument before the European Court of Human Rights in light of the US experience', Berkeley Journal of International Law, vol. 32, no. 1 (2014) pp. 1-43.

* Kanstantsin Dzehtsiarou and Donal K. Coffey, 'Legitimacy and Independence of International Tribunals: An Analysis of the European Court of Human Rights', Hastings International and Comparative Law Review, vol. 37 (2014) p. 271.

* Samantha A. Miko, 'Norm Conflict, Fragmentation, and the European Court of Human Rights', Boston College Law Review, vol. 54 (2013) p. 1351.

* F. Mégret, 'The notion of ‘continuous violations’, expropriated Armenian properties, and the European Court of Human Rights', International Criminal Law Review, vol. 14, no. 2 (2014) pp. 317–331.

* S. Borelli, 'Domestic investigation and prosecution of atrocities committed during military operations: the impact of judgments of the European Court of Human Rights', Israel Law Review, 2013, vol. 46, no. 2, pp. 369-404. 

* C. Ryngaert, 'Oscillating between embracing and avoiding Bosphorus: the European Court of Human Rights on Member State responsibility for acts of international organisations and the case of the EU', European Law Review, vol. 39, no. 2 (2014) pp. 176-192.

* R. Ahdieh and H. Flemming, 'Toward a jurisprudence of free expression in Russia: the European Court of Human Rights, sub-national courts, and intersystemic adjudication', UCLA Journal of International Law and Foreign Affairs, vol. 18, no. 1 (2013) pp. 31-60.

The Court itself, together with the Fundamental Rights Agency of the European Union, launched an updated version of its 'Guide to European law on asylum,borders and immigration'. The earlier version has proven to be a huge success with over 26,00 downloads of this freely available ebook. For other languages than English, please see here.

Finally, last month, Lord Phillips of Worth Matravers delivered a public lecture at King’s College London, entitled 'European Human Rights: A Force for Good or a Threat to Democracy?' which can be read online.