Friday, 24 November 2017

New Book on the Use of Force and Article 2 ECHR

Dr Hannah Russell of the Northern Ireland Human Rights Commission has just published a new book on the right to life with Hart Publishing, entitled 'The Use of Force and Article 2 of the ECHR in Light of European Conflicts'. This is the abstract:

'Article 2 of the European Convention on Human Rights (ECHR) in its current form is incomplete and outdated. Due to significant development at a legislative and judicial level, the right to life spans beyond what is enumerated within Article 2. With the belief that Article 2 is still relevant, this book investigates how the right to life can be better protected within Europe. It advocates for the modernisation of Article 2 through codifying legislative and judicial developments relevant to this provision in the form of guidelines. It also considers the improvements that can be made by the Council of Europe (CoE) bodies – the European Court of Human Rights (ECtHR), the Committee of Ministers (CoM), the Parliamentary Assembly of the Council of Europe (PACE) and the CoE Commissioner for Human Rights – to encourage adherence to Article 2 and promote effective remedies to prevent future violations. It uses the experience from four internal European conflicts – the Basque conflict, the Chechen conflict, the Northern Ireland Troubles and the Turkish-Kurdish conflict – to illustrate its points.'

Tuesday, 21 November 2017

Videos on the European Court

The special web page of the website of the European Court on Human Rights that is dedicated to short videos on the Court and its procedures has been further extended. It now also includes new language versions of the film about the Court in Bulgarian, Dutch, Finnish, Greek and Slovak. five key videos are now available in total:

* A film of 15 minutes for a wider audience about what the European Court of Human Rights is and does.
* A video on the European Convention on Human Rights and Fundamental Freedoms and the rights included in it.
* A tutorial video on how to lodge an application with the Court.
* A video on admissibility conditions.
* A video on 60 years of the Convention, which includes some nice historical footage.


Tuesday, 14 November 2017

Article on Baka and the Rule of Law


David Kosař and Katarína Šipulová of Masaryk University have written: 'The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law', Hague Journal on the Rule of Law (2017). This is the abstract:

'The rise of abusive constitutionalism in Central and Eastern Europe (CEE) has hit the domestic judiciaries particularly hard. Viktor Orbán expanded the size of the Constitutional Court and then packed it, made sure that he can install a new president of the Constitutional Court, ousted the Supreme Court president through a constitutional amendment, disempowered the existing judicial council and created the new institution with power over ordinary judicial appointments. Jaroslav Kaczyński followed the same playbook in Poland. While most scholars have focused primarily on effects of abusive constitutionalism upon the constitutional courts, we argue that the keys to the long-term control of the judiciary are presidents of ordinary courts and judicial councils . The dismissal of the Hungarian Supreme Court President is a perfect example of this logic—by this move Orbán got rid of the most important court president in the country, the head of the Hungarian judicial council and his most vocal critic. Yet, András Baka lodged an application to the ECtHR and won. This article analyses the Grand Chamber judgment in Baka v. Hungary, its implication for the rule of law, and the limits of what the ECtHR can achieve against abusive constitutionalism. It concludes that the Grand Chamber failed on all key fronts. It overlooked the main structural problem behind Mr. Baka’s dismissal (the broad powers of court presidents in CEE), it has blurred the Convention’s understanding of the concept of the rule of law, and it failed in delivering a persuasive judgment firmly based on the existing ECtHR’s case law.'

Thursday, 9 November 2017

Report on Selection of Judges

The International Commission of Jurists and the Open Society Justice Initiative have published a report on the selection of human rights judges (including at the European Court of Human Rights). The report, entitled 'Strengthening from Within. Law and Practice in the Selection of Human Rights Judges and Commissioners', analyses the practice of selection procedures and tests these against standards of fairness, inclusiveness and transparency. For readers of this blog, chapter 3A on the Strasbourg Court will be of special interest. As one former ECtHR judge is quoted saying in the report, “the procedures at regional level [in the Council of Europe] have improved beyond recognition.” And compared to other regional systems it may indeed be relatively solid. However, problems remain as the rejection of a number of lists of three candidates from a number of countries has shown in the past few years. This is the abstract of the report as a whole:

'National procedures for the selection of regional human rights court judges too often fail to meet standards of fairness, inclusiveness and transparency, a joint Open Society Justice Initiative (OSJI) and ICJ report published today concludes. The report makes recommendations aimed at ensuring that the best qualified candidates are selected as judges of regional human rights courts.

Regional human rights courts and commissions—including the African Court of Human and Peoples’ Rights, the European Court of Human Rights, and the Inter-American Court of Human Rights—are essential safeguards for the rule of law.

Yet despite their importance, the process of selecting the judges and commissioners who sit on these bodies—how they are nominated, vetted, and ultimately selected—remains largely unknown and often shrouded in secrecy. Coupled with broader political efforts to erode international judicial institutions, this secrecy underscores the pressing need to focus on strengthening these systems from within.

This report, Strengthening from Within, responds to that challenge. It shines a light on the processes that states use to nominate and select human rights judges and commissioners. By analyzing the nomination practices of 22 countries, the report documents the ways in which nomination procedures often fall short of the legal frameworks and international standards that should guide them. It also identifies promising practices and offers recommendations for improvement grounded in experience.

An independent judiciary is essential to the rule of law: for national courts, procedures for judicial selection must be fair, transparent, and merit-based. As this report makes clear, the world’s international courts and tribunals are no different.'

Friday, 20 October 2017

Fifth Edition of Free Online Course on ECHR

This coming Monday 23 October, we are launching the fifth edition of our successful and free Massive Open Online Course (MOOC) on the ECHR. It is entitled 'Human Rights for Open Societies. An introduction into the European Convention on Human Rights' and is offered on the Coursera platform. You can register here and watch the trailer video here. This is the announcement:

'For the fifth time Utrecht University launches the highly successful MOOC 'Human Rights for Open Societies - An Introduction into the European Convention on Human Rights'. This course is for everyone who is interested in the protection of human rights and the idea of open societies. More than 11,500 enthusiastic learners participated in the previous editions of the online course. The new edition of the MOOC starts on 23 October 2017. 

Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal.

In this course, Prof Antoine Buyse (Human Rights), Prof Janneke Gerards (Fundamental Rights Law) and Dr Paulien de Morree introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. This international treaty is one of the most successful instruments for protecting human dignity and it is a crucial tool for achieving an open society. In this course you will discover what this treaty is and how it aims to advance human rights and the idea of an open society in Europe.

You will learn when and how people can turn to the European Court of Human Rights to complain about human rights violations and how the Court deals with the difficult human rights dilemmas of today. You will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. This course also addresses the rights of migrants, refugees, and other vulnerable groups. And, of course you will see whether and under what conditions human rights may be restricted.'

Thursday, 19 October 2017

New ECHR Readings

Please find below another batch of new academic writings about the European Convention and the European Court:


'In her manuscript Elisa Ravasi examines how the ECtHR responds to the growing challenges of overlapping legal systems. She focuses, in particular, on the relationship between the ECHR and EU law. First, she systematically analyses 10 years of ECtHR jurisprudence on the principle of equivalent protection and develops an innovative analysis scheme for its application. Afterwards, she examines the equivalency of the human rights protection provided by the ECJ in light of the minimum standards of the ECHR in three specific fields (naming law, ne bis in idem and equality of arms). Finally, she considers whether the presumption of equivalent protection of the ECtHR in favour of the EU is still justified.'

* Anja Seibert-Fohr, 'The Effect of Subsequent Practice on the European Convention on Human Rights', in: Anne van Aaken & Iulia Motoc eds., The ECHR and General International Law,(forthcoming):

'Under which conditions and to what extent can subsequent State practice legitimately influence the interpretation or even modify international treaties? This issue of general international law has been on the European Court of Human Rights’ agenda for quite some time and is ongoing as evidenced in Hassan v. the United Kingdom. While State practice has traditionally played a role in the interpretation of the Convention, the Court’s methodology to determine under what circumstance and to what extent State practice is able to affect the scope and meaning of the Convention remains uncertain.

This article develops a general theoretical framework, which rationalizes the normative value of subsequent practice in the context of human rights treaty interpretation and sets out its relevant standards. Drawing from the ILC’s recent work on ‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’, the author argues that the Vienna Rules provide a matrix. This perimeter allows sufficient flexibility to accommodate the specific nature of human rights law. The author proposes a normative scale, which can guide the Court in enhancing its methodological consistency. Pursuant to this scale, exigencies for the density of subsequent practice and the degree of acceptance pursuant to Article 38 (1)(b) VCLT vary depending on the nature of the rule and the claimed normative value of State practice. Once State practice meets the required standard, it can sustain the legitimacy of treaty interpretation. On this basis, subsequent practice can serve as a catalyst for the advancement of human rights.'

* Kristen Barnes, 'Adjudicating Equality: Antidiscrimination Education Jurisprudence in the European Court of Human Rights', Harvard Journal on Racial & Ethnic Justice, Vol. 33, 2017: 

'This Article examines the state of antidiscrimination education jurisprudence in Europe by analyzing several prominent cases brought before the European Court of Human Rights. In those cases, the applicants alleged that they were discriminated against in the exercise of their right to education based upon their ethnicity in violation of the European Convention on Human Rights. Novel aspects of the cases include the Court’s recognition of the theory of indirect discrimination and its imposition of positive obligations. The cases examined have a broader application that has yet to be explored at the higher education level and by other racial minority groups. Focusing on the legal principles of proportionality, the margin of appreciation, and consensus, this Article analyzes the Court’s reasoning and delineates its framework for cases of this type. The paper offers insights concerning the Court’s theory of racial discrimination, highlights issues arising out of the theory and its application, and concludes with recommendations for the Court’s future trajectory in this realm.'

Tuesday, 10 October 2017

Call for Papers: Workshop at European Court of Human Rights

On 21 September 2018, a group of leading academic centres in Europe, including our own Netherlands Institute of Human Rights (SIM), is co-organising a workshop at the European Court of Human Rights in Strasbourg. The workshop is entitled:

Responding to Legitimacy Challenges: Opportunities and Choices for the European Court of Human Rights - Researchers Meet the Court

In that context, we are now opening a call for papers. The deadline is 15 February 2018. This is a unique opportunity to present and discuss your work at the Court in the presence of judges, members of the Court’s Registry and leading academics!

Content of the Workshop
Challenges confront the European Court of Human Rights (ECtHR) and its procedures, policies and judgments. Criticisms concern the Court’s backlog, its methods of interpretation, its deference to domestic actors – or its lack thereof. Reactions from states include willful partial compliance with judgments or even principled resistance. These challenges have appeared in many different shapes: not just as criticism from State Parties’ governments, but also from domestic courts, academics, civil society organizations and the media.

Against the backdrop of these challenges, we organize a workshop at the European Court of Human Rights to facilitate informal exchanges among academics and members of the Court including the Registry. The aim is to identify and discuss both challenges and possible solutions. The event will address how the ECtHR may respond and does respond by varied means, including:
  • criteria for case selection;
  • the Court’s reasoning;
  • pilot judgments;
  • dialogues with domestic judiciaries;
  • the margin of appreciation doctrine.

Call for Papers
We invite abstracts of maximum 400-500 words together with a cover letter by February 15, 2018, in one single PDF document. The abstract should go beyond the standard conference abstract and include the key steps of the argument to be presented. The cover letter should include a 1 paragraph CV and explain the context of the paper: e.g. whether it is part of a PhD project, whether it is based on undertaken empirical research or part of ongoing research etc. Accepted contributors will be asked to provide a 4-5 page position paper, to be presented at a panel of the workshop. Travel funds will be available upon request.

To submit a paper abstract, go to the submission portal.

Organisers
This event is co-organized by PluriCourts of the University of Oslo, The Netherlands Institute of Human Rights (SIM) and the Montaigne Centre at Utrecht University, the Human Rights Centre at Ghent University, Koç University Centre for Global Public Law and Hertie School of Governance, Berlin in collaboration with the European Court of Human Rights.

Tuesday, 3 October 2017

Book on Clashing Rights at the European Court

The excellent colleagues over at the Ghent Human Rights Centre have published a new book on conflicts between rights in Strasbourg. The book, edited by dr Stijn Smet and professor Eva Brems, is entitled When Human Rights Clash at the European Court of Human Rights - Conflict or Harmony? and was published with Oxford University Press. This is the book's abstract:

'The notion of conflict rests at the heart of the judicial function. Judges are routinely asked to resolve disputes and defuse tensions. Yet, when judges are called upon to adjudicate a purported conflict between human rights, they face particular challenges and must address specific questions. Some of these concern the very existence of human rights conflicts. Can human rights really conflict with one another, in terms of mutual incompatibility? Or should human rights be interpreted in harmony with one another? Other questions concern the resolution of real conflicts. To the extent that human rights do conflict, how should these conflicts be resolved? To what extent is balancing desirable? And if it is desirable, which understanding of balancing should judges employ? This book seeks to provide both theoretical and practical answers to these questions. 

When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? debates both the existence and resolution of human rights conflicts, in the specific context of the case law of the European Court of Human Rights. The contributors put forth principled and pragmatic arguments and propose theoretical as well as practical approaches, whilst firmly embedding their proposals in the case law of the European Court. Doing so, this book provides concrete ways forward in the ongoing debate on conflicts of rights at Europe's human rights court.'

Congrats, Stijn and Eva!

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.'