Thursday, 23 April 2015

Five New Judges Elected to the Court

This week the Parliamentary Assembly elected five new judges to serve on the European Court of Human Rights, in respect of Finland, Austria, Ireland, Andorra, and Liechtenstein. This will mean a renewal of part of the Court, but also a loss of experience. Especially the stepping back of Josep Casadevall (Andorra), one of the Court's vice-presidents and serving on the Court since 1996(!), will be felt.

The new judges (three women, two men) are (links to full press release and CV for each person included): 
Pauliine Koskelo, judge of the European Court of Human Rights in respect of Finland
Gabriele Kucsko-Stadlmayer, judge of the European Court of Human Rights in respect of Austria
PerePastor Vilanova, judge of the European Court of Human Rights in respect of Andorra
Carlo Ranzoni, judge of the European Court of Human Rights in respect of Liechtenstein
Síofra O’Leary, judge of the European Court of Human Rights in respect of Ireland.

·    Good luck to all of them when taking up their new positions in the coming year! 

Wednesday, 22 April 2015

Summer School Protection of Fundamental Rights in Europe

The universities of Bologna and Strasbourg and King's College London are again co-organising a Summer School on "The Protection of Fundamental Rights in Europe". The Summer School is held from 28 June to 3 July in the castle of the beautiful Rocca di Bertinoro. This is the description the organisers provided:

The Summer School aims to provide graduates, practitioners and young researchers (Ph.D. candidates) with an in depth background of the protection of fundamental rights at European level. The general courses are about the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. The single modules tackle topics alike asylum and migration, EU citizenship, relationship between the CJEU and the ECHR, the margin of appreciation doctrine, constitutional transitions and religious freedom. The course is composed by 30 hours of frontal lectures from Monday to Friday 9-13 and 15-17. The teaching method encourages students to have a proactive dialogue with lecturers.

Registration can be done from early May onwards through the website of the University of Bologna here.

Monday, 20 April 2015

Conference on ECHR and General International Law

The European Court of Human Rights and the European Society for International Law are jointly organising a conference on "The European Convention on Human Rights and General International Law". The conference will be held on 5 June in the building of the European Court in Strasbourg. The programme includes presentations by a large number of judges from the Court itself, as well as from colleagues from the International Court of Justice, and a number of leading scholars of human rights and public international law. You can find more information on the conference, including on how to register for it, here.

Thursday, 16 April 2015

European Court Recruiting New Registrar

The European Court of Human Rights has opened a vacancy for its highest position below the judges: the registrar. The Court is currently looking for a candidate to succeed to the current registrar. The registrar leads the administrative and judicial support apparatus of the Court consisting of around 650 people, responsible for the processing of individual complaints and for preparing them for adjudication. Here are some of the key tasks to be performed by the Registrar according to the vacancy:

-          assists the Court in the performance of its functions and is responsible for the organisation and activities of the Registry;
-          provides leadership and direction to staff by maintaining a harmonious and efficient working environment within the Registry so as to ensure that the Registry provides effective assistance to the Court;
-          determines the overall staff and budgetary policy; retains an overview and takes decisions on staff and budgetary matters;
-          upholds contact with the highest levels of authority in the Council of Europe, notably in relation to matters affecting staff and budget policy;
-          develops an effective communications policy, in accordance with the instructions of the Court, notably in relation to the media, the general and specialised public and other international and national courts;
-          advises the Court on practice and procedure;
-          represents the Registry and, on the instructions of the President, the Court.

The registrar is elected by the plenary of the Court and appointed by the Secretary-General of the Council of Europe. A registrar is appointed for a renewable term of five years. Please find an organizational chart of the Court itself, including the place of the registrar, here. Those interested in the vacancy should apply before 27 May 2015.

Tuesday, 7 April 2015

New ECHR Readings

A large number of new ECHR-related publications have been published as book chapters and articles in the past few months. Here is the first batch of updates on these:

* James Sweeney, 'Non-retroactivity, Candour and ‘Transitional Relativism’: A Response to the ECtHR Judgment in Maktouf and Damjanović v. Bosnia and Herzegovina', Diritti Umani e Diritto Internazionale, vol. 8, no. 3 (2014) pp. 607-622.

* Heta-Elena Heiskanen and Jukka Viljanen 'Reforming the Strasbourg Doctrine on Extraterritorial Jurisdiction in the Context of Environmental Protection', European Law Reporter, no. 11 (2014) pp. 285-295. 

* Adam Weiss, 'Family Reunifi cation at the Interface of EU Law and the European Convention on Human Rights', in: Richard Plender, Issues in International Migration Law (Brill - Nijhoff 2015).

And the German Law Journal vol. 16 (2015) includes a special section on Opinion 2/13 of the European Court of Justice no EU Accession to the ECHR (all articles available freely as PDFs on the journal's website): 

* “It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward, Daniel Halberstam;
* Autonomy and Effectiveness as Common Concerns: A Path to ECHR Accession After Opinion 2/13, Christoph Krenn;
*The Reinterpretation of TFEU Article 344 in Opinion 2/13 and Its Potential Consequences, Stian Øby Johansen;
* When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR, Adam Lazowski & Ramses A. Wessel;
* The EU’s Accession to the ECHR: The Dream Becomes a Nightmare, Steve Peers.

Finally, an article which may have lost some of its topical salience as a result:

* Vilija Velyvyte, 'The Right to Strike in the European Union after Accession to the European Convention on Human Rights: Identifying Conflict and Achieving Coherence', Human Rights Law Review, vol. 15, issue 1 (2015) pp.73-100.

Friday, 20 March 2015

Conference on Parliaments and the European Court of Human Rights

Middlesex University and the Helsinki Foundation for Human Rights are co-organising a conference on the interface of national parliaments and the European Court of Human Rights. The conference will be held in Warsaw, Poland, on 12 May from 09:30 to 17:30 (CEST).

Confirmed speakers include (former) ECtHR Judges Myjer and Kaladjieva; Almut Wittling-Vogel (the Representative of the German Federal Government for Matters Relating to Human Rights); Murray Hunt (legal adviser to the UK Joint Committee on Human Rights); Polish Senator Michal Seweryński; Polish Government Agent Justyna Chrzanowska; Başak Çali of Koc University; Daniel Florea of the Romanian Chamber of Deputes sub-committee for the execution of judgments; Christian de Vos of the Open Society Justice Initiative; and Adam Bodnar of the Helsinki Foundation in Warsaw

Registration for the event can be done here.

The two main organising researchers, Philip Leach and Alice Donald, will publish a book on the issue later this year with Oxford University Press, entitled 'Parliaments and the European Court of Human Rights'

Tuesday, 10 March 2015

Conference on 20 years after McCann v UK

This year it will be twenty years since the European Court issued its key judgment in the case of McCann and others v the United Kingdom, finding violations of the right to life in relation to British anti-terrorist operation in Gibraltar. To reflect upon the judgment's aftermath and meaning, dr Stephen Skinner of the Centre for European Legal Studies of the University of Exeter is organising a conference entitled "Lethal Force, Policing and the ECHR: McCann and Others v UK at Twenty". The event will be held at Doughty Street Chambers in London on 25 March. This is the organiser's abstract of the event: 

The workshop will provide an opportunity to reflect on the significance of the landmark 1995 judgment by the European Court of Human Rights in the case of McCann on lethal force and the right to life. A panel of eight specialists will consider the importance of McCann and the effect of human rights standards on the use of lethal force in police operations, in the UK and across Europe. The speakers are Sir Keir Starmer QC, Doughty Street Chambers; Jonathan Cooper, Barrister, Doughty Street Chambers; Daniel Machover, Partner, Hickman & Rose Solicitors; Helen Shaw, Co-Director, Inquest; Det. Ch. Sup Brian Dillon, Metropolitan Police Service; Dep. Ch. Con. Simon Chesterman, National Lead for Armed Policing; Tanja Rakusic-Hadzic, Head of the Criminal Law Co-operation Unit, Council of Europe; and Stephen Skinner, University of Exeter.

Places are limited and only available on a RSVP basis. For further information and to reserve a place please contact the workshop convenor, dr Stephen Skinner ( S.J.Skinner at ).

Tuesday, 10 February 2015

Hutchinson v UK: The right to hope (revisited)…

I am happy to present a guest comment by Dr Kanstantsin Dzehtsiarou of the University of Surrey on the recent judgment of Hutchinson v the United Kingdom:

The European Court of Human Rights has recently delivered a judgment in the case of Hutchinson v the United Kingdom. The applicant in this case is serving a life-long imprisonment sentence. It means that he will never be eligible for an early release. Two years ago in the case of Vinter the Court ruled that such a practice is incompatible with the Convention. This short comment examines whether the new judgment develops or modifies the principles established in Vinter.

Vinter revolution

In July 2013 the Grand Chamber of the European Court of Human Rights delivered a judgment in the case of Vinter and others v the United Kingdom in which it found that life imprisonment without a prospect of release violates Article 3 of the Convention – prohibition of torture, inhuman and degrading treatment and punishment. According to English law some convicted criminals can be sentenced to life imprisonment without parole, and this was considered as a violation of the Convention by the ECtHR. As judge Power-Forde stated in her concurring opinion the prisoners should retain the right to hope. In Vinter, the ECtHR emphasised that the right to hope builds on human dignity and fuels the indispensable purpose of rehabilitation.

The Court found a violation in this case because English law has not offered any real opportunity to review life-long sentence without parole. This was held so, despite the fact that in theory the Secretary of State had a power to release a prisoner in exceptional circumstances. However, these exceptional circumstances were narrowed down by the ‘Lifer Manual’ to those prisoners who were terminally ill or physically incapacitated. As was rightly pointed out by the Court such compassionate release cannot be even considered as a release at all.

In Vinter, the Court did not demand an immediate release of the applicants but only held that a legal system which does not offer effective and clearly defined hope to release violates Article 3 of the Convention.

Vinter is spreading

While the ECtHR decision in Vinter did not immediately help the applicants in that case it had significant implications on the case law of the ECtHR itself. One of those implications is evident in the case of Trabelsi v Belgium in which the Court found that extradition of the applicant to the state where he could face life imprisonment without parole would violate Article 3. The logic in this case is simple: if this type of life imprisonment is a violation of Article 3, then the risk of such treatment in the receiving state should halt the extradition.

Vinter has more fundamental implications. In this judgment the Court emphasised its adherence to the ideals of rehabilitation and reintegration of dangerous criminals. It is hard to comprehend how life-long incarceration could support rehabilitation of such prisoners – life-long sentences remove from both the prisoners and the prison authorities any incentive to reintegrate the inmates into the society. Effectively, a life-long imprisonment means the social death of the inmate. With Vinter in mind, this approach has to change. The Contracting Parties have an obligation to introduce programmes of rehabilitation even for those who serve life imprisonment in order to make release (although, remote) a possibility. A prisoner-centred penitentiary system should leave an inmate a chance to reintegrate into the society.

Finally, Vinter is a logical step forward in liberalisation of criminal punishment. Vinter signalled the dissolution of the social contract according to which the death penalty was replaced by a life-long sentence.

The Hutchinson counter-revolution

3 February 2015 the Chamber of the European Court of Human Rights delivered a judgment in Hutchinson v the United Kingdom. The facts of this case are very similar to the ones in Vinter v the United Kingdom. The Chamber did not find a violation of Article 3 of the Convention as the ECtHR was of the opinion that the English Court of Appeal has now sufficiently clarified the law in relation to release by the Secretary of State in exceptional circumstances.

The ruling of the Court of Appeal was that despite the fact that the ‘Lifer Manual’ was not amended, the Secretary of State is nevertheless bound directly by the decision of the European Court of Human Rights in Vinter. It effectively means that the manual is not good law any more. But which law is good law then is still unclear. If the Secretary of State considered this part of the Lifer Manual as invalid he would arguably have amended it by now. In Vinter the Court found a violation because English law was not sufficiently clear; now English law is arguably even less so. This ruling may prepare the ground for new litigation in England. As it was rightly stated in the dissenting judgment by judge Kalaydjieva, this judgment is pre-mature as it pre-empts effective changes in English law.
Undoubtedly, the United Kingdom enjoys a broad margin of appreciation in regulating its penal policy but this margin has its limits and the Court set clear limits in Vinter. One can therefore argue that the Chamber of the ECtHR in Hutchinson has effectively overruled the judgment of the Grand Chamber in Vinter. This has already been pointed out by English press. If this is the case, then the Court’s attitude to its own precedent does not satisfy the conditions of the rule of law. The principles adopted in Vinter were upheld in Hutchinson but their application was significantly curtailed.

It is highly possible that this case might be referred to the Grand Chamber and then the judgment of the Chamber might be revoked. According to the Convention the parties to the case have 3 months to refer the case to the Grand Chamber. It is up to a panel of 5 judges to accept this case for the Grand Chamber hearing or not. It is likely that this case will be accepted. A similar scenario happened in the Roma school children segregation cases. In DH v the Czech Republic the Grand Chamber held that there was a violation of the anti-discrimination provisions of the Convention. In the subsequent case of Orsus v Croatia the Chamber did not find a violation in the situation significantly similar to DH. The Chamber judgment in Orsus was subsequently overruled by the Grand Chamber. It is quite possible that the same will happen in relation to Hutchinson v the United Kingdom.

In Hutchinson the Chamber has not explicitly overruled the Grand Chamber judgment in Vinter but the Court almost never does this explicitly.  The concept of ‘bad law’ is not well developed in the Court’s case law. According to this concept, the Court should explicitly acknowledge overriding its previous judgment and explain its reasons for doing that. The European Court of Human Rights often leaves this issue ‘up in the air’ not clearly stating if the previous case-law is still valid. Having said that, the doctrine of evolutive interpretation forces the Court to overturn its previous rulings from time to time. The Convention itself does not make the Court adhere to its own precedents which is nevertheless almost always done in practice. It is possible that the Court decides that Hutchinson has only clarified Vinter. This assumption however is highly contestable for the reasons mentioned above.

Game of Courts

Does this case signal a trend in the Court’s case law? Are there going to be more highly politicised judgments in favour of the United Kingdom prior to the 2015 elections? Is the European Court of Human Rights a strategic actor that can sacrifice certain achievements in certain areas of human rights protection in order to save the “Strasbourg project”? The Court’s judgments in the next few months are crucial for answering these questions.

In England, the level of hostility towards the European Court of Human Rights is indeed very high and the behaviour of the United Kingdom towards the Court can determine how influential the Court will be in the following decades. Having said all that, one can wonder what price the Court should and is prepared to pay to have the UK on board. 

Monday, 2 February 2015

Two New Judges Elected to the Court

Last week, two new judges were elected to serve at the European Court of Human Rights. In respect of Bulgaria, the newly elected judge is Yonko Grozev. He received 108 of 187 votes cast. Grozev wil succeed Zdravka Khalaydjieva. With his election the Court seems to gain a solid voice for human rights, at least judging from his CV: he is an active human rights lawyer, having taken cases both to Bulgarian courts and to the European Court itself. In fact, it is fair to say that he has litigated in a large number of the most notable ECHR cases concerning Bulgaria, including AnguelovaHasan and Chaush, Al-NashifNachova, and M.C. In addition, he was a founding member of the Bulgarian Helsinki Committee and involved in a range of other human rights NGOs. He has also trained numerous lawyers in ECHR jurisprudence. His term of office (nine years) will start within three months.
In respect of Serbia, Branko Lubarda was elected. In the first round none of the three candidates managed to receive an absolute majority and Mr Lubarda ended second. in the second voting round he obtained a majority: 90 of 159 votes cast. He is currently professor of labour law at the University of Belgrade. He has been active, amongst others, in state institutions fighting corruption. Mr Lubarda will succeed the current judge in respect of Serbia: Dragoljub Popovic.
One may note, in addition, that at the end of January the new Committee on the Election of Judges of the Parliamentary Assembly of the Council of Europe started its work, under the chairmanship of Klaas de Vries. General information on how the process of election of judges works, can be found here.

Monday, 19 January 2015

New Book on Effects and Implementation of Judgments of the Court

Professors Anja Seibert-Fohr (University of Goettingen) and Mark Villiger (judge at the European Court in respect of Liechtenstein) have compiled an edited volume following the very successful conference on the European Court of Human Rights held at Goettingen in 2013. The book is entitled 'Judgments of the European Court of Human Rights - Effects and Implementation' and has been published with Nomos Verlag. This is the abstract: 

This volume deals with the domestic effects of judgments of the European Court of Human Rights as a challenge to the various levels of legal orders in Europe. The starting point is the divergent impact of the ECtHR’s jurisdiction within the Convention States. The volume seeks new methods of orientation at the various legal levels, given the fact that the Strasbourg case law is increasingly important for most areas of society. Topical tendencies in the case law of the Court are highlighted and discussed against the background of the principle of subsidiarity. The book includes a detailed analysis of the scope, reach, consequences and implementation of the Court’s judgments and of the issue of concomitant damages. At the same time the volume deals with the role of domestic jurisdictions in implementing the ECtHR’s judgments. Distinguished Judges, legal academics and practitioners from various Council of Europe States are among the contributors to this volume, which succeeds in bringing divergent points of view into the discussion and in developing strategies for conflict resolution.