Friday 30 April 2010

Gender Justice Perspective on ECHR Case-Law

I would like to bring the Gender Justice Observatory to your attention. This website is, in its own words an "interactive database of important decisions from national, regional and international courts and tribunals and of strategies to work with courts and tribunals on issues related to sexual and reproductive rights, gender discrimination and gender violence." It contains a big collection of summaries and analyses of gender-related case-law from global and regional human rights institutions, including the European Court of Human Rights. This includes landmark cases for gender issues such as Opuz and Munoz Diaz, but is not entirely complete yet. Hopefully more is to follow. One can search the collection by theme, treaty, country or institution. An extra feature is that parts of the site are bilingual, making the information available both in English and Spanish.

Thursday 29 April 2010

PACE Rapporteur on Interlaken

The rapporteur of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly, Mrs Marie-Louise Bemelmans Videc, has drafted a report which is the basis of the Assembly's reaction to the Interlaken Conference. The Assembly's resolution (no. 1726) was adopted today. The report is entitled 'Effective implementation of the European Convention on Human Rights: the Interlaken process'. Although she applauds that the conference has been held, she is also critical of its format:

Not being a habitual participant in such ‘high level conferences’, I found it a pity that no opportunity was provided for a genuine discussion or exchange of views on subjects of importance; the texts prepared ahead of time were simply adopted by consensus. This left me with a flavour of missed opportunities ... as I had come to the Conference with the intention of listening to a real discussion.
Apart from that she calls for increased involvement of national parliaments to turn the primary responsibility for human rigths on the national level into a reality. This is of course a call aimed at her own colleagues, all of which also are members of national parliaments or senates. Indeed, one can say they could play a key role in persuading their fellow national parliamentarians at home to take a more active role. Another key aspect she points to is the financing of the Council of Europe's activities:

My second – more important – comment concerns member states’ need to give top priority to the Council of Europe’s budgetary predicament, in the light of the now entrenched real zero-growth rate. Here, do we parliamentarians not have an obligation to bring this matter to the attention of our respective countries’ political leaders? The present situation is simply untenable, not to say suicidal. I refer, in particular, to the Assembly’s Opinion 272 (2009) on Budgets of the Council of Europe for the financial year 2010,3 the Secretary General’s Interlaken contribution pinpointing (potential) difficulties in this respect, as well as Mrs Däubler-Gmelin’s observation: “considering that the Court is financed through the Council of Europe’s budget, state contributions are totally inadequate, not to say pathetic (several states’ contributions to the Council of Europe’s budget do not even cover – or only barely – the salary of a single judge on the Court!)”. Between 2003 and 2009 the Court’s budget grew from 35.4 million to 57 million euros. In 2003 the Court accounted for 19% of the Organisation’s ordinary budget, compared with 26.3% in 2009. If, as the Secretary General has indicated, money continues to be transferred from the Council of Europe’s Programmes of Activity budget to the Court, there will soon be no money left for programmes of activity. We must find other solutions. And yet, despite the urgency and imperative necessity for member states to deal with this matter, this subject is not even mentioned in the Interlaken Declaration.
Let's hope her incisive comments will be followed up in a serious way.

Article on Right to Life Jurisprudence

The newest issue (Vol 14, Issue 2, 2010) of the International Journal of Human Rights contains an article by Juliet Chevalier-Watts (University of Waikato, New Zealand), entitled 'A rock and a hard place: has the European Court of Human Rights permitted discrepancies to evolve in their scrutiny of right to life cases?'. This is the abstract:

This article is concerned with the developing jurisprudence of the right to life under Article 2 of the European Convention on Human Right since the Murder on the Rock case. In particular, this article considers how the European Court of Human Rights scrutinises police lethal force cases in comparison with military lethal force case in light of the recent fatal shooting of Jean Charles de Menezes on the London Underground by British police. The first part of the article considers the background to this shooting; the requirements of Article 2; and the seminal case of McCann and Others v United Kingdom, that instigated the development of Article 2 in this area of law. The second part of the article considers how those principles developed in the Murder on the Rock case have been applied and construed in subsequent military and police lethal force cases, and explores the rationalisation for any discrepancies in the approach of the Court.
The same issue also features an article by Klaus Brummer of the University of Erlangen-Nuremberg, entitled 'Enhancing intergovernmentalism: the Council of Europe and human rights':

International governmental organisations (IGOs) thoroughly scrutinise their member states' domestic human rights policies. More often than not, though, the organisations' decision-making bodies are unwilling to act on the information that their monitoring bodies generate. This paper discusses three options that might enhance intergovernmental human rights protection: the strengthening of institutions, the creation of new institutions, and the intensification of cooperation with other organisations. However, there are formidable obstacles to a proper implementation of any of those options. Therefore, human rights protection by IGOs will remain suboptimal. The Council of Europe - Europe's human rights watchdog - serves as a case in point.

Wednesday 28 April 2010

New Ukrainian Judge Elected

Yesterday, the Parliamentary Assembly of the Council of Europe elected Mrs Ganna Yudkivska as judge with respect to Ukraine. She knows the Strasbourg system from the inside, as she has experience as a lawyer within the Court's registry for five years and as a human rights lawyer on the national level. She obtained an absolute majority of votes cast (117 out of 210). She has been elected for six years and her term will start within three months. When Protocol 14 enters into force this summer, her term will automatically be extended to 9 years. Under that same Protocol, her term is not renewable. Click here for her personal homepage with some background information.

The election of Ganna Yudkivska ends a long period of uncertainty, in which every time ad hoc judges had to be appointed for applications concerning the Ukraine. For several years (at least since 2007) a battle raged over the list of three candidates. Ukraine had submitted an entirely new list after one of the initial candidates withdrew. This led to such dismay at the Parliamentary Assdembly, that in the end the Court was asked by the Committee of Ministers to issue an Advisory Opinion. See my earlier posts here and here. Interestingly, Mrs Yudkisvska was the only candidate on the original list on which no very big controversy seemed to exist. No doubt the turbulent political situation in the Ukraine has a lot to do with the whole controversy. It is good that now at least there will be again a fixed judge in respect of Ukraine. After all, there is a lot of work to do, with Ukraine being in the top 4 of countries against which the Court issues judgments.

One may note that one day earlier, on Monday, president Viktor Yanukovych visited the Court. On the same day, he also addressed the Parliamentary Assembly in a speech, in which not a word was said on the whole issue.

Monday 26 April 2010

New blog with case-law comments

The ever expanding human rights tree of bloggers has a new offshoot: a blog set up my a group of academics from Ghent University in Belgium, under the supervision of professor Eva Brems, with comments on Strasbourg case-law. This new blog features critical notes on recent Strasbourg case-law by a team of Ghent researchers working under a project on strengthening the European Court - More Accountability Through Better Legal Reasoning. For the blog, called Strasbourg Observers, please click here. For the project's description, click here!

I wish the new blog lots of succes!

Wednesday 21 April 2010

Op-Ed on UK Human Rights Act and ECHR

This is an interesting op-ed by the chairman of the Scottish Human Rights Commission, as published in yesterday's Guardian newspaper. It adds to the ongoing debate on a possible repeal of the British Human Rights Act. The author, Alan Miller, takes a strong stance against such a repealing. This is the article:

The Human Rights Act from a Scottish perspective

As chair of the Scottish Human Rights Commission (SHRC), human rights matter to me at three interconnected levels – global, UK and Scottish. I am concerned at the plight of the persecuted in Zimbabwe, the detention in Scotland by UK authorities of children of asylum seekers or the neglect of older persons in Scotland.

What happens after the general election to the UK Human Rights Act (HRA) has a significant impact at all three levels. Any UK government committed to building upon the HRA would have a positive impact. Any UK government committed to a "consultation" process that has as its starting point the repeal of the act would have a harmful impact. This is of course the manifesto position of the Conservative party.

First, at a global level – no developed country has repealed fundamental human rights legislation. No "consultation" process claiming to be leading to a bill of rights has started out on the basis of repeal of fundamental human rights legislation. Repealing the HRA and replacing it with something less effective would give a green light to regimes around the world to continue, or to escalate, human rights abuses, and in part justify this by pointing to the UK's rolling back of human rights protection. This has been the experience of the past few years with the so-called "war on terror" and rehabilitation of torture.

Second, at a UK level, such a "consultation" process over the next few years would seriously undermine the many efforts of everyone engaged in practical ways of using the HRA as a means of raising standards of public services, eg care of older people and other vulnerable members of the community. All public authorities in the UK currently have a duty to comply with the HRA and where best practice has been developed to assist public authorities in so doing the quality of public services has been significantly improved, as the SHRC has found in an independent evaluation of the State Hospital for Scotland and Northern Ireland.

At a UK level, the repeal of the HRA could also create a two-tier system of the level of human rights protection within the UK. The act currently provides a "safety net" or common standard of human rights protection for individuals throughout the UK. It is unlikely that the Scottish parliament would seek to lower the level of protection of human rights through supporting the repeal of the HRA as it applied in Scotland in relation to such devolved areas as health, , housing, criminal justice, education and social work. Consequently, residents in Scotland would enjoy a higher degree of human rights protection, more in line with the UK's international legal obligations and international best practice, than residents in England and Wales. The question will inevitably be asked: why should residents of Gateshead not enjoy the same protection as those in Glasgow?

Third, at a Scottish level, the HRA has been an important pillar of the constitutional framework of devolution. Under the Scotland Act 1998 (which established the Scottish parliament and the Scottish government) there is a duty of both to comply with the Human Rights Act and through it the European convention on human rights (ECHR).

This has had tangible benefits for the public. For example, it has ensured that all of the legislation passed by the Scottish parliament has been compatible with the rights of individuals under the ECHR. That of course has not been the case with certain Westminster legislation which has had to be successfully challenged in the courts. The HRA has also been influential in contributing to progressive and popular Scottish legislation relating to, for example, mental health and homelessness.

The Scottish Human Rights Commission is committed to defending the HRA and in fact progressively building on it. As part of our four-year strategic plan the commission is embarking on a "mapping" of the realisation of human rights throughout Scotland – identifying the "gaps", and good practices, of human rights protection. The purpose of this is to determine what needs to be done to bring the living experience of all, particularly the most vulnerable, up to the standards consistent with the UK's international legal human rights obligations.

This evidence will then inform a genuine public consultation on how to build upon the HRA and develop a national action plan for human rights in Scotland. This would be able to be progressively implemented by the Scottish parliament and Scottish government and all public authorities through a variety of means – legislative, administrative, policy and practice development and resource allocation

Rather than seeking to reduce the domestic influence of international human rights obligations through repealing the HRA this approach would aim to progressively bring the living experience of all, without discrimination, up to those international standards.
For a post on the situation in Northern Ireland, look on the UK Human Rights Blog.

Monday 19 April 2010

ECHR at Sea

A few weeks ago the Grand Chamber of the Court ruled in a case concerning the jurisdiction of state parties on the High Seas: Medvedyev v. France. The case concerned the seizure of a Cambodian ship by the French authorities in order to arrest the crew, which they suspected of drugs smuggling. Materially the case focuses on Article 5 ECHR, amongst others on the legality of the arrests. The Grand Chamber found violations of the right to liberty, contrary to an earlier ordinary Chamber judgment. Since I am not an expert of the law of the seas, I am very happy to refer the interested reader to an insightful post on the judgment by Douglas Guilfoyle (University College London) on EJIL Talk. Also worth reading for all 'jurisdiction'-afficionados!

Friday 16 April 2010

Annual Report on the Execution of Judgments

Wednesday, the Committee of Ministers of the Council of Europe released the Annual Report on its supervision of the execution of the Court's judgments by the state parties in 2009. It was another year of increasingly intense and burdened supervision, but since the Interlaken conference of this year some venues for improvement seem at least to be possible. This is what the Council of Europe says on it in its press release:

In 2009 1515 new judgments finding violations of the European Convention on Human Rights were brought before the Committee of Ministers for supervision of their execution, thus bringing the number of cases under supervision to 7 881. The compensation awarded to the victims in the new judgments 2009 amounted to some 54 million Euros.

In their introductory remarks to the report, the successive Chairs of the Committee of Ministers’ special human rights meetings in 2009 stress the increasing burden faced by the Committee of Ministers, the responses under way as well as the reflections engaged, notably in the wake of the High Level Conference in Interlaken in February 2010 on the future of the European Court.

In the light of the challenges posed by the present situation and the entry into force of Protocol No. 14 to the Convention, the Director General of Human Rights and Legal Affairs, Philippe Boillat, notes the importance of continuing the efforts to optimise the supervision of execution on the basis of the action plans and reports submitted by governments and to reinforce cooperation programmes with States (notably through the Human Rights Trust Fund set up end 2007).

The Director also underlines the improvement of the effectiveness of domestic remedies and the efficient means to be developed at national level to accelerate the execution of the judgments of the European Court, in the light in particular of the Committee of Ministers’ Recommendation (2008)2 on the subject. He also underlines the importance of the increased interaction between the Court and the Committee of Ministers, as well as with other Council of Europe bodies.

The report contains detailed statistics highlighting the main tendencies of the evolution of the execution process in 2009 (including by state) and a thematic overview of the most important developments in the execution of the pending cases.

The report notes moreover the adoption of the new Recommendation (2010)3 on effective remedies for excessive length of proceedings, both by accelerating pending proceedings and by compensating victims for the prejudice suffered because of the delay in the administration of justice.
Hat tip to Andrew Drzemczewski of the Council of Europe!

Wednesday 14 April 2010

More Articles on ECHR

Dear readers, the monthly overviews of new articles on human rights of the Netherlands Institute of Human Rights (SIM) at which I am based, have yielded two more previously unmentioned journal articles on ECHR matters:

* D. Spielmann, 'Recent trends in the case-law of the European Court of Human Rights: is the Universal Declaration Obsolete', Bulletin des droits de l'homme, no. 14 (2009), pp. 11-26.

* J. Cohen, 'Kosher slaughter, state regulation of religious organizations, and the European Court of Human Rights', Intercultural human rights law review, vol. 4 (2009) pp. 355-386. To be accessed through HeinOnline.

Tuesday 13 April 2010

The Convention on Facebook

In an apparent attempt to connect to younger generations of Europeans online, the Council of Europe has set up a Facebook page on the European Convention on Human Rights, accompanied by this text in marketing language:

Let’s share about the European Convention on Human Rights’ impact on Europeans everyday lives, its achievements and shortcomings. Let’s debate about how we perceive our rights to life, liberty, security, a fair trial, family life and freedom of conscience, religion and expression.

By becoming a fan of Convention’s Facebook page, you will have the opportunity to view topical movies, access pictures, leave comments on the wall, get to know with numerous multimedia resources as posters, animated brochures and podcasts, follow discussions and keep up to date with the latest events! Last but no means least, here you can get in touch with human rights supporters from all around Europe.

Our rights, our freedoms - Our Convention on Facebook - see you there!
Personally, I am not so sure what the exact goal of this exercise is and what it will do for human rights awareness, but it's worth a try of course. Who knows what is to follow: twittering judges or registry personnel on LinkedIn and MySpace?

Monday 12 April 2010

New blog on Human Rights in the UK

The human rights blogosphere is ever-expanding. Please take a look at a very professional and informative new blog on human rights in the United Kingdom: UK Human Rights Blog, which is made by 1 Crown Office row. The blog is devoted to human rights developments in the United Kingsom in general, but features a lot of posts which deal directly with ECHR cases against the UK or ECHR interpretation by British judges. Well worth to follow!

Thursday 1 April 2010

The Convention on Youtube

To celebrate the sixtieth anniversary of the European Convention on Human Rights, the Court has launched a short youtube animation on all the rights contained in the Convention. It is currently available in English and French and other languages are to follow later this year. The Court itself optimistically adds that it "wishes to encourage initiatives aimed at including this video-clip in civic education programmes." - hopefully with a little explanation around it.