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." 

Assignment

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.

Standards:

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

Essential
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.
Desirable
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;
page3image13968 page3image14128
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.

Thursday, 22 December 2016

End of Year ECHR Readings

As the year wraps up, please find a final selection of ECHR-related readings of 2016. I wish all the readers of this blog a good 2017!

* Stijn Smet, Resolving Conflicts between Human Rights. The Judge's Dilemma (Routledge Publishers 2016):

Under the influence of the global spread of human rights, legal disputes are increasingly framed in human rights terms. Parties to a legal dispute can often invoke human rights norms in support of their competing claims. Yet, when confronted with cases in which human rights conflict, judges face a dilemma. They have to make difficult choices between superior norms that deserve equal respect. In this high-level book, the author sets out how judges the world over could resolve conflicts between human rights. He presents an innovative legal theoretical account of such conflicts, questioning the relevance of the influential proportionality test to their resolution. Instead, the author develops a novel resolution framework, specifically designed to tackle human rights conflicts. The book combines concerted normative theory with profound practical analysis, firmly rooting its theoretical arguments in human rights practice. Although the analysis draws primarily on the case law of the European Court of Human Rights, the book’s core arguments are applicable to judicial practice in general. As such, the book should be of great interest to academics, postgraduate students and legal practitioners in Europe and beyond. The book is particularly suited for use in advanced courses on legal theory, human rights law and jurisprudence.

* Michael O’Boyle, 'Emergency Government and Derogation under the ECHR', European Human Rights Law Review, Issue 4 (2016) pp. 331-341.

This Opinion takes the recent French derogation from the ECHR as the starting point for a general reflection on the notions of derogation and emergency government and the need for legal safeguards against human rights abuses that are (and always have been) associated with states of emergency. It also looks at the differing views that have been expressed by judges on the meaning of the notion in art.15 “threatening the life of the nation”, the role played by the margin of appreciation in the interpretation of this provision and the concept of proportionality, arguing that the art.15 language “strictly required by the exigencies of the situation” denotes the need for greater Strasbourg review in keeping with practice in certain judgments. Finally, it highlights the vital role of the judiciary in times of emergency as a check against excesses and ultimately as a guardian of the democratic system as a whole—a role considerably undermined by the measures against the judiciary taken by Turkey following the recent abortive coup.

* Lize Glas and Jasper Krommendijk, 'From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship between the Luxembourg and Strasbourg Court', Human Rights Law Review, Vol. 17(2) 2017, forthcoming, but available on SSRN

With its recent judgment in Avotiņš v Latvia of May 2016, the ECtHR arrived at its long-awaited answer to Opinion 2/13 of the CJEU. Many commentators hinted at the possibility that the ECtHR would drop its Bosphorus presumption following Opinion 2/13 because of the critical approach of the CJEU towards the ECtHR in Opinion 2/13. The ECtHR, however, chose to uphold the Bosphorus doctrine in Avotiņš, a case dealing with the Brussels I Regulation on the mutual recognition of civil law judgments. At first sight, the response of the ECtHR in Avotiņš does not seem antagonistic and it seems that the ECtHR avoided entering into an arms race with the CJEU. Closer scrutiny of the judgment reveals, however, that this is not entirely true.

* Graham Butler, 'The Ultimate Stumbling Block? The Common Foreign and Security Policy, and Accession of the European Union to the European Convention on Human Rights', Dublin University Law Journal, Vol, 39(1) (2016), pp. 229-244.

* Nasia Hadjigeorgiou, 'Remedying Displacement in Frozen Conflicts: Lessons From the Case of Cyprus', Cambridge Yearbook of European Legal Studies, Vol. 18 (2016) pp. 152-175:

This article examines the jurisprudence of the European Court of Human Rights, in order to assess the effectiveness of the remedies provided and procedures followed by the Immovable Property Commission (IPC), a mechanism that was established by Turkey in order to remedy displaced Greek Cypriots. It recommends changes for the improvement of the IPC and argues that with their adoption, the Commission could act as a blueprint for the establishment of similar remedying bodies in other frozen conflicts as well. Such institutions are not only important in terms of states’ compliance with their human rights obligations, but can also contribute to the resolution of the underlying conflict itself.

* Kristin Henrard, 'The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?', Nordic Journal of Human Rights, Vol. 34, No. 3 (2016).