Tuesday, 25 April 2017

Conference on Derogations from the ECHR and Situations of Emergency

On 4 May, the Institute of International Law and International Relations of the University of Graz is organising a confernece entitled "Derogation from the European Convention on Human Rights under Contemporary Situations of Emergency". The conference will be held at the Faculty of Law. Beyond a general European perspective, cases studies of four countries are included: the United Kingdom, Ukraine, France and Turkey.

The full conference programme can be found here. To register, please send a message to: bettina.friedl (at) uni-graz.at 

Wednesday, 19 April 2017

My Article on Influence of ECHR Anti-Torture Jurisprudence on the UN Human Rights Committee

I have just posted on SSRN my new paper on jurisprudential influences of Strasbourg case-law on the work of the United Nations Human Rights Committee. It is entitled 'Echoes of Strasbourg in Geneva. The Influence of ECHR Anti-Torture Jurisprudence on the United Nations Human Rights Committee'. This is the abstract: 

"In this article the influence of the European Court of Human Rights’ case-law on the United Nations Human Rights Committee will be analysed. This particular choice of supervisory bodies enables us to trace such potential influence adequately since both the Court and the Committee supervise treaties which mainly concern civil and political rights: the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Both are legally binding elaborations of the Universal Declaration of Human Rights. Many of the rights in the two treaties are, as a consequence, formulated in a similar way. This facilitates a systematic comparison between the case-law of the two supervisory institutions. To map the possible influence of the Court’s jurisprudence on the Committee’s work as precisely and concretely as possible, I will focus on the prohibition of torture and inhuman and degrading treatment."

Tuesday, 11 April 2017

Book on Equality of Arms under Article 6 ECHR

Omkar Sidhu has published the book 'The Concept of Equality of Arms in Criminal Proceedings under Article 6 of The European Convention on Human Rights' with Intersentia Publishers. This is the abstract:

"Inherent to and at the very core of the right to a fair criminal trial under Article 6 of the European Convention on Human Rights is the concept of equality of arms (procedural equality) between the parties, the construct given detailed and innovative treatment in this book. 

As a contextual prelude to more specific analysis of this concept under Article 6, certain influential historical developments in trial safeguards which mark a centuries-long evolution in standards of, and the value attributed to, procedural fairness are identified to establish a background to Article 6 before its inception. Thereafter, the book offers a thorough theoretical insight into equality of arms, investigating its multi-faceted value, identifying its contemporary legal basis in Article 6 and in international law, and defining its fundamental constituent elements to elucidate its nature, including its underpinning relationship with Article 6(3). The book argues that the most important of these constituent elements––the requirement of ‘disadvantage’––is not equated by the European Court of Human Rights with inequality in itself, which would be a dignitarian interpretation, but with inequality that gives rise to actual or, in some circumstances, inevitable prejudice. This proposition is the golden thread running through the analytical heart of the book’s survey of case-law in which the Court’s approach to procedural equality in practice is demonstrated and assessed within the context of the Article 6(3) rights to challenge and call witness evidence, to adequate time and facilities, and to legal assistance. 

The end result is a book for both scholars and practitioners that will not only forge an enhanced general understanding of procedural fairness safeguards and standards, including from a historical perspective, but also provoke, more specifically, new reflection on the concept of equality of arms."

Monday, 3 April 2017

Enroll for May Edition of MOOC on ECHR

After two successful editions and over 8000 participants in total, we have now opened up enrollment for the third edition of the MOOC 'Human Rights for Open Societies - An Introduction to the European Convention on Human Rights'. The starting date is 8 May, but you can already enroll now.

More information: This course was developed by Antoine Buyse, Janneke Gerards and Paulien de Morree, connected to the Netherlands Institute of Human Rights (SIM) at Utrecht Law School.

Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And often, minorities are 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 often is an uphill battle to work towards that ideal. 

The course will help participants equip themselves and learn more about what human rights are and how they work. They will learn when and how people can turn to the European Court of Human Rights to complain about human rights violations. And they will learn when and how the Court tries to solve many of the difficult human rights dilemmas of today. The course looks at, amongst others, the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. The rights of migrants,  refugees, and other vulnerable groups will also be addressed in this MOOC. Finally, the course will look into the question of whether it is possible to restrict rights and under what conditions. 

Is this a course for you?
This course is open to everyone interested in the protection of human rights and the linkages with open and democratic societies. 

Interested in participating? 
The MOOC ‘Human Rights for Open Societies – An Introduction to the European Convention on Human Rights’ will start on May 8, 2017. 

Enroll here on Coursera. Enrollment is for free – participants only pay a fee if they want to obtain a certificate at the end of the course.

Friday, 31 March 2017

New ECHR Readings

At the end of the month a short list of recent ECHR-related writings:

* Fiona de Londras (Birmingham University) and Kanstantsin Dzehtsiarou (Liverpool University) have published 'Mission Impossible? Addressing Non-Execution Through Infringement Proceedings in the European Court of Human Rights', in the International and Comparative Law Quarterly, vol. 66, no. 2 (2017):

'Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States’ execution of its judgments.'

* Vladislava Stoyanova of Lund University had published a book on Article 4 ECHR, with Cambridge University Press, entitled 'Human Trafficking and Slavery Reconsidered. Conceptual Limits and States' Positive Obligations in European Law':

'By reconsidering the definitions of human trafficking, slavery, servitude and forced labour, Vladislava Stoyanova demonstrates how, in embracing the human trafficking framework, the international community has sidelined the human rights law commitments against slavery, servitude and forced labour that in many respects provide better protection for abused migrants. Stoyanova proposes two corrective steps to this development: placing a renewed emphasis on determining the definitional scope of slavery, servitude or forced labour, and gaining a clearer understanding of states' positive human rights obligations. This book compares anti-trafficking and human rights frameworks side-by-side and focuses its analysis on the Council of Europe's Trafficking Convention and Article 4 of the European Convention on Human Rights. With innovative arguments and pertinent case studies, this book is an important contribution to the field and will appeal to students, scholars and legal practitioners interested in human rights law, migration law, criminal law and EU law.'

* Nikolaos Sitaropoulos (Office of the Council of Europe Commissioner for Human Rights) has published a research paper on SSRN entitled 'Migrant Ill -Treatment in Greek Law Enforcement – Are the Strasbourg Court Judgments the Tip of the Iceberg?':

'The present paper aims to provide an analysis of the first major judgments of the Strasbourg Court which usefully shed light on the underlying, long-standing systemic failures of the Greek rule of law. The author argues that these judgments are in fact only the tip of the iceberg. For this the paper looks into the process of supervision of these judgments’ execution by Greece, which is pending before the Council of Europe Committee of Ministers, as well as into alarming reports issued notably by CPT as well as by the Greek Ombudsman. The paper also highlights the question of racial violence that has not been so far the subject of analysis in the Court’s judgments concerning ill-treatment in Greece. However, a number of reports, especially the annual reports of the Greek Racist Violence Recording Network since 2012, record numerous cases of racist violence by law enforcement officials targeting migrants and the ineffective responses by the administrative and judicial authorities. The paper’s concluding observations provide certain recommendations in order to enhance Greek law and practice and eradicate impunity.'

* The European Court's proceedings of its annual seminar 'Dialogues Between Judges', at the opening of the court's judicial year. are available on a dedicated web page.

Monday, 20 March 2017

René Cassin Competition This Week

This week, the 32nd edition of the René Cassin Competition will be held in Strasbourg. It is the oldest French-language moot court competition on the European Convention on Human Rights. This year, the topic is health and European human rights law. Thirty teams, representing either the applicant alleged victim or the defendant state will meet up from Wednesday to Friday. The competition is organised by the University of Strasbourg Faculty of Law and the René Cassin Foundation with the support of, among others, the European Court and the Council of Europe.

Attending the finals is still possible, by registering here. More information, including the documents of this year's imaginary case, can be found on the competition's French-language website. Good luck to all the participating teams!

Monday, 6 March 2017

European Implementation Network has Director Vacancy

The European Implementation Network (EIN), set up last year, has opened a vacancy for a full-time Director to manage its organizational development and to develop and implement a programme of activities focused on delivering its mission.

In its own words, " is a newly established non-governmental, member- based organization set up to champion the implementation of European Court of Human Rights (ECtHR) judgments. The EIN’s mission is to build and strengthen the ability of lawyers, NGOs, and applicants to access every part of the Council of Europe (CoE) that can contribute to better implementation of these judgments; to advocate for full implementation of particular cases; and to support more robust structures that facilitate implementation at the national level. EIN undertakes initiatives ranging from supportive (information sharing, access, advice and technical support, capacity-building) to proactive (advocacy, new initiatives) to advance its vision and mission. Its work is overseen by a Bureau elected by its members." 


Location: Strasbourg, France
Reporting to: EIN Bureau
Contract: Funding has been secured for the first year’s employment. Continued employment beyond the first year is subject to securing further financing.
Salary: Up to 50,000 per annum, depending on qualifications and experience
Staff Management
Supervise the work of the Finance and Events Management Officer, and any consultants.


In carrying out the above, the Director will adhere to the highest professional standards and to EIN procedures and policies as directed by the Bureau, and will ensure that EIN staff do the same.

Qualifications and Experience

a. 4 6 yearsexperience as a project manager, with knowledge of fundraising, financial management, and developing donor relationships;
b. Excellent organizational and networking skills;
c. Good knowledge of the CoE, the European Convention on Human Rights (including the implementation of ECtHR judgments), and the human rights situation in Europe;

d. Fluent written and spoken English and a high degree of proficiency in French.
a. Postgraduate qualification in a relevant field such as law, political science, public policy, development management (highly desirable);
b. Experience of working with a board;
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c. Experience of civil society advocacy in international organizations.

Under the supervision and guidance of the EIN Bureau, the Director will be expected to fulfil the following principal duties and responsibilities:

Organizational Development:
1. Establish an EIN office in Strasbourg (including sourcing a suitable office space and purchase of office equipment);
  1. Facilitate the timely appointment of a finance and events management officer;
  2. Develop operational and financial procedures for the organisation;
  1. Develop the activity and financial plans for 2017- 2018;
  2. Develop a strategy for the expansion of the EIN’s network of members and partners and
    conduct relevant outreach activities.
Financial management and fundraising
  1. Manage the implementation of the financial plan (including annual, monthly, and activity budgeting), and regular reporting to the Bureau;
  2. Oversee other aspects of financial management, including cash flow, timely settlement of expenses, adherence to financial procedures, the requirements of donors, and the conduct of an annual audit;
  3. Develop a fundraising strategy and funding application plan to ensure the financial sustainability of the organization, including the preparation of concept notes and grant applications;
  4. Develop strong relationships with donors, and maintain an updated listing or database of contact information, potential funding opportunities, and donor technical priorities;
  5. Oversee reporting on projects in line with donor requirements.
Project Management:
  1. Organise briefings for member state representatives to the CM on ECtHR judgments prior to quarterly CM Human Rights (CM-DH) meetings, as well as periodic thematic briefings for other CoE organs;
  2. Facilitate communication of NGOs, lawyers, and activists with diplomats and Council of Europe staff through arranging meetings and other networking opportunities;
  3. Oversee and organise capacity building activities, including trainings for lawyers, NGOs and other relevant actors on the implementation of ECtHR judgments in Strasbourg as well as in the CoE member states;
  4. Produce a handbook for civil society on the supervision of execution processes at the CoE, including a toolkit on how to engage with various CoE bodies;
  1. Manage the effective implementation of the EIN activity plan as a whole;
  2. Undertake advocacy in support of the implementation of specific ECtHR cases including drafting written submissions to the Committee of Ministers (CM), and organizing consultations, briefings, and other events; develop the necessary contacts with member state representatives to the CM, with CoE officials, and with members of the CoE
    Parliamentary Assembly;

  1. Develop a communications strategy, oversee the running of the EIN website, and coordinate the publication of EIN quarterly newsletters and other publications;
  2. Cultivate and maintain close contacts with members and partners of the EIN, as well as other litigating NGOs and lawyers across the CoE member states;
  3. Secure participation of the EIN as observers to the relevant intergovernmental working groups at the CoE.
The position will require modest amounts of international travel. Relocation support will be provided, if necessary.

How to Apply
Please complete the application form which can be downloaded here and send it with a covering letter, by email, both to ein.strasbourg@gmail.com and to nwarner@gn.apc.org.  The cover letter should fully address the qualification requirements listed above, giving concrete evidence of how you meet these requirements wherever possible. Please do not send separate CVs or other attachments – these will not be considered.
The closing date for applications is Thursday 23rd March at midnight GMT. The interview date is set provisionally for Friday 7 April in London. The successful applicant will be expected to start duties in May 2017 or as soon as possible thereafter.
If you have any questions concerning this application, please contact Nigel Warner at nwarner@gn.apc.org or 00 44 207 278 1496.

Friday, 24 February 2017

Book on Family Rights and the ECHR

Carmen Draghici (City University London School) has just published the book 'Legitimacy of Family Rights in Strasbourg Case Law- ‘Living Instrument’ or Extinguished Sovereignty?' with Hart Publishing. It is both available as hardback and e-book. This is the book's abstract:

'Modern family life exhibits a huge variety of new forms. Legal responses to these new forms illustrate the continuing differences between European nations. Nonetheless, the Strasbourg Court has been increasingly active in this area, which provides fertile ground for testing the legitimacy of the Court's interpretation of the European Convention on Human Rights. When national law refuses to recognize a claimed right, litigants regularly reassert that right before the Strasbourg Court. This has forced it to seek answers to complex domestic controversies, such as the legal recognition for same-sex partners and transgender persons, the ethics of adoption and reproductive rights, the legal regime for cohabitants, or the accommodation of immigrants' aspiration to family reunion.

Placing family rights at the core of the judicial legitimacy debate, this book provides a critical analysis of the standards of family rights protection under the Convention. It evaluates the Court's interpretive methodology and discusses the tensions inherent in its supranational quasi-constitutional function. These include the risk of excessive deference to national authorities, at the expense of the effective enforcement of universal rights; the addition of 'new rights'; and inattention to the division of responsibilities between democratic processes within sovereign States and the subsidiary international review.'

Wednesday, 15 February 2017

ESIL - European Court Conference on Migration

Pre-announcement: the European Society for International Law and the European Court of Human Rights will co-organise a one-day conference on ‘Migration and the European Convention on Human Rights’. The conference will take place on Friday 6 October 2017 at at the Court in Strasbourg. The programme will include presentations by judges from the European Court of Human Rights as well as international law scholars. 

More information on the programme and details of how to register will be available in due course on the website of the European Society of International Law.

Monday, 6 February 2017

MOOC on the ECHR Open for Registration

After its very successful first airing, with over 5000 participants at the end of last year, we will again run our Massive Open Online Course (MOOC) starting next week 13 February. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for open Societies - An introduction into the ECHR' was developed together with my Utrecht University colleagues professor Janneke Gerards and dr Paulien de Morree. This is the abstract of our six-week course:

'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. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:

Friday, 3 February 2017

Conference on Principled Resistance Against European Court Judgments

Professor Marten Breuer of the Law School of the University of Konstanz in Southern Germany is organising a conference entitled "Principled Resistance against ECtHR Judgments – a New Paradigm?". It will take place in the town hall of Konstanz on 1 and 2 June and will feature both country-specific (Russia, UK, Italy, Switzerland and Germany) and general contributions as well as a final roundtable in which I will also participate. The full programme can be found here. This is the organisers' abstract about the conference:

'In recent years, there have been more and more instances where national courts, in a principled manner, declared their unwillingness or inability to give suit to an ECtHR judgment. So far, those cases have initiated discussions about the Court’s ‘legitimacy’ and about the necessity of having a ‘dialogue between judges’. The conference takes a different approach, labelling such cases examples of ‘principled resistance’. The research question is whether those cases reveal a general pattern: Has the Court overstretched its competence by its evolutive interpretation so that cases of ‘principled resistance’ may be explained as reactions necessary to preserve national identity? Or is the current accumulation of such cases just a coincidence and are the underlying rationales too divergent to reveal a general pattern? The conference aims to give a dogmatic answer to those questions and thereby to help preserving the long-term functioning of the Convention.'

Registration can be done here.

Thursday, 26 January 2017

The Court in 2016: Overview

At his annual press conference today, the President of the European Court of Human Rights, Guido Raimondi, presented an overview of the Court's work over the past year. The most important issues: in 2016, for the first time after a two-year decrease, the number of incoming cases was on the rise again, and quite considerably so. at the end of December 2016, 79,750 were pending in Strasbourg. this is a rise of 23% compared to a year earlier. After the decreases of the previous years, which seemed to make inroads in the huge backlog of cases, this rise is worrying obviously. Especially, if we consider that the Court internally has been working even more efficiently in 2016 (a rise of 32% of allocated cases) To a considerable extent, it seems to be caused by complaints about detention conditions in Hungary and Romania and with the situation in turkey, especially after the failed July coup. Moreover, the number of decisions on interim measures also rose with a staggering 56% to 1,926 in 2016. Two thirds of these requests concern expulsion cases.

Further statistics (including overviews for each ECHR State Party) also give an indication were human rights are under pressure on the largest scale: at the end of 2016 the majority of pending applications concerned Ukraine (22.8 %), Turkey (15.8 %), Hungary (11.2%), Russia (9.8 %), and Romania (9.3 %). Almost 70 percent of all pending cases thus concern only five countries. Half the priority cases concerned Ukraine. As to violations found in 2016 by the Court, a handy overview shows that the top countries against which the Court found at least one human rights violation per case are largely the same ones: Russia (228 judgments), Turkey (88), Romania (86), Ukraine (73), Greece (45) and Hungary (41).

The full webcast of the press conference can be watched here.

Wednesday, 25 January 2017

New Judges in respect of the Netherlands and Hungary

Yesterday, the Parliamentary Assembly of the Council of Europe elected two new judges to the European Court of Human Rights. For the Netherlands, judge Jolien Schukking was elected. Judge Schukking was preferred over two other similarly very well-qualified Dutch ECHR experts, professors Rick Lawson and Martin Kuijer. All three are currently fellow board member here at the Dutch human rights law review (Nederlands Tijdschrift voor de Mensenrechten) - as a journal board we are obviously very proud of all three and especially of Jolien. Many congratulations, Jolien!

Jolien Schukking is an experienced national judge, currently in the Administrative High Court for Trade and Industry (College van Beroep voor het bedrijfsleven), one of the (four) highest Administrative Courts in the Netherlands. Previously, she was a judge at the first instance court of Utrecht, dealing with both refugee law and criminal law cases. She has also been active as a solicitor. Jolien Schukking is no stranger to Strasbourg, as she was a senior legal officer with the dutch Foreign Ministry in the past, amongst others representing the country in human rights proceedings at the European Court as well as leading the Dutch delegation on negotiations on Protocols 12 and 13 ECHR. She has even worked at the former European Commission of Human Rights for some time. She also has experience in UN human rights law. Jolien Schukking has also been active in training and teaching judges on the ECHR internationally and is currently a board member of both the Foundation Judges for Judges and a member of the International Association for Refugee Law Judges.

In respect of Hungary, the choice fell on Mr Péter Paczolay. Again, a very experienced judge, having been judge at Hungary's Constitutional Court from 2006 to 2015, of which he was President since 2008 until 2015, when the recent changes to the Constitutional Court were made by the government. Also well-known and appreciated in the Council of Europe, e.g. though his work for the Venice Commission, the Commission “for Democracy through Law” in which he served and three years ago was made honorary President. Whatever the current political developments in his own country, it is great to see the Parliamentary Assembly did value his credentials in staunchly defending and upholding the rule of law (to note: an earlier list of three candidates submitted by Hungary was sent back by the Assembly). Congratulations too! 

Both new judges have been elected for a term of nine years and should start working in Strasbourg within three months.

Thursday, 19 January 2017

Guest Post on Grand Chamber Judgment in Hutchinson

As the first post of the new year on the ECHR Blog, it is my pleasure to introduce a guest post by Kanstantsin Dzehtsiarou of the University of Liverpool on this week's Grand Chamber judgment on life sentences without parole in the case of Hutchinson v. the United Kingdom.

Is there hope for the right to hope?
Kanstantsin Dzehtsiarou, University of Liverpool

A disappointing Chamber judgment in Hutchinson v the UK led on 17 January 2017 to an equally disappointing Grand Chamber judgment in the same case. This case was a follow-up from the Court’s judgment in Vinter v the UK in which the Court ruled that life sentences without parole which cannot be reviewed are incompatible with the Convention as they violate Article 3 ECHR – the prohibition of torture and inhuman and degrading treatment and punishment. The Court has poetically in this context come up with the term “a right to hope”, meaning that a life prisoner should have hope to be released however remote this hope might be. This blog post does not take a stand on the issue of whether the judgment in Vinter was a correct interpretation of the Convention. Rather I will argue here that Vinter’s overturn in Hutchinson lacks consistency and that it is based on a very thin legal foundation.

I have already considered the facts of Hutchinson case and its connection with Vinter in my previous blog post on this issue and therefore I will below only consider the reasoning of the Grand Chamber of the Court.

Magic powers of the Court: it can see something where there is nothing

In Hutchinson, the Court has overruled its previous judgment. Usually, this is done by means of evolutive interpretation. Arguably, in this case we have an instance of interpretation of evolution which lowers rather than heightens human rights protection. Although this is not unprecedented in the Court’s history, one can argue that the Court needs serious reasons to depart from its own case-law not only in cases of ‘progressive’ evolution but especially in opposite cases. On more than one occasion the Court itself has pointed out that evolutive interpretation should be justified by particularly strong reasons. In the current climate when there is a growing political appetite to curtail human rights, a Court interpretation towards change in this direction without good reasons may create a dangerous precedent for further reduction of basic human rights guarantees.

It is argued here that the Court simply had no reason to depart from Vinter. The Court focused on the McLoughlin decision of the Court of Appeal of England and Wales which in the view of the majority had clarified the applicable law and for that reason, unlike in Vinter, the Court could no longer find a violation of Article 3 ECHR. I dare to suggest that the McLoughlin judgment merely reiterated what was known at the time when the judgment in Vinter was deliberated and therefore McLoughlin did not provide a clear reason to depart from it.

This is so, for a number of reasons. First, it was known at the time of the Vinter judgment that the Secretary of State can revise a life sentence without parole in a very narrow set of circumstances provided by the Lifer Manual. Despite the findings of the Grand Chamber in Vinter, the Secretary of State can still revise the life sentence accoridng to the same Lifer Manual which is still in force.

Secondly, the Court of Appeal suggested in McLoughlin that “The Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds. He cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual. This was also known at the time of Vinter. Back then, the European Court had explicitly considered the earlier judgment of the Court of Appeal in R v. Bieber in which Lord Phillips ruled that “At present it is the practice of the Secretary of State to use this power sparingly [power to release], in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.” It is quite clear that Lord Phillips suggested that the Secretary of State can go beyond what is provided for in the Lifer Manual under certain circumstances which were quite ambiguous at the time of Vinter and that they have not been clarified ever after. Moreover, it seems that neither at the time of Vinter nor at the time of Hutchinson were these suggested broad powers used by the Secretary of State in practice.

Thirdly, the Court referred to the Human Rights Act of 1998, saying that the Secretary of State should take into account the case law of the European Court in making his or her decision about a possible release of the prisoner. The Human Rights Act came into force in the year 2000. The Court delivered its judgment in Vinter in 2013 and it was known by the Court at that time that Strasbourg jurisprudence should be taken into account by the Secretary of State. This knowledge did not prevent the Court from finding a violation then. The limitations of the Human Rights Act argument were also highlighted by the dissenting judge Pinto de Albuquerque.

Finally, the Court was concerned in Vinter with the lack of clarity in relation to the timeframe of review of the sentence, in other words there was no minimal term after which this review should have taken place. In Hutchinson, the European Court stated that it is not a problem any longer because the prisoner can apply to the Secretary of State at any point during his or her sentence. Curiously, at the time of Vinter I would suggest the rule was exactly the same.

The conclusion is that the Court has changed its stance without having a concincing explicit reason to do so. It seems that the Court implicitly acknowledged that its judgment in Vinter was an incorrect reading of the Convention and Hutchinson has clarified this. The Court did not state that but the very thin foundation of the reasoning in Hutchinson suggests so.

What comes after Hutchinson?

Arguably, the right to hope still stands as this key standard has not been (at least explicitly) overruled by the Court. It just changed how it defines the term– even a glimmer of hope is now sufficient. Vinter had a significant influence on the case-law of the ECtHR. Just to name a few examples: the Court prevented extradition of the applicant to the country in which he could be sentenced to life imprisonment without parole in Trabelsi v Belgium, the Court used the fact that life prisoners can have a hope for release to justify the need for rehabilitation of such prisoners and as a result found a violation of the Convention in Khoroshenko v Russia for not providing family visits during first ten years of life imprisonment. After Hutchinson, the clarity of the standards of Vinter is no longer applicable law.

Now, I can see two possible consequences of the Grand Chamber judgment in Hutchinson. First, it will be a sui generis standard for the United Kingdom while all other states will be under a more stringent standard developed in Vinter. This outcome has an obvious disadvantage of creating double standards in human rights protection. The second possibility is that Hutchinson will justify a broader margin of appreciation for the Contracting Parties in this area and as a result it will cause loosening of the standards that were developed in the recent case-law of the Court.

As it is often said – every cloud has a silver lining. It is possible for the Court to review its judgment in Hutchinson. If the Secretary of State continues to use her powers very restrictively, and there will be no effective way to facilitate the right to hope in practice, the Court can come back to this issue. It has done that in the past. For example, in Sheffield and Horsham, the Court warned the UK that if it does not improve transgender rights protection it will find a violation of the Convention in the future. While not condemning the UK for a violation in Sheffield and Horsham, only four years later the Court found a violation in the very similar case of Christine Goodwin v the UK. Although the situation in Hutchinson and in Sheffield and Horsham are obviously different the Court might be asked to reconsider this situation when an appropriate application is submitted.