Thursday 28 October 2010

Scottish Practice Contrary to Salduz Requirements

The Supreme Court of the United Kingdom has recently issued its decision in the case of Cadder v. H.M. Advocate. It concerns the compatibility of Scottish law with the Salduz v. Turkey judgment of the Grand Chamber of the European Court (see my earlier short post here). Thusfar, Scottish police officers were allowed to question suspects for six hours before they were given access to a lawyer. In the Cadder case the Supreme Court decided, on the basis of Salduz, that this was contrary to the requirements of the ECHR. For the judgment itself plus a short introduction, see this recent post on Lallands Peat Worrier (thanks for the reference!).

Wednesday 27 October 2010

Winter School on ECHR and Migrants

The University of Bologna - the oldest in Europe - is organising a 'Winter School' on 'The European Convention of Human Rights: mechanism of protection and rights of migrants' from 10 to 14 January 2011. According to the organisers, the course aims to focus on two topics: The functioning mechanism of the European Convention of Human Rights (submission of an application, conditions of admissibility, Court’s evaluation, judgments’ effects, surveillance mechanism on judgments’ implementation); The role of the ECtHR on the protection of migrants and of people without a nationality (arts. 2, 3, 8 ECHR). More information on registration can be found here and the full programme can be found here.

Friday 22 October 2010

Case Note on Demopoulos Decision

Over at Terra Nullius, a specialised blog on housing, land and property (HLP) rights, Rhodri Williams has published a case note on the Demopoulos v. Turkey decision, which was issued earlier this year by the European Court on property of persons in Northern Cyprus (see my earlier post here). The case note was published in Volume 49 No. 3 of International Legal Materials. A sharp analysis of the problematic aspects of this decision.

Thursday 21 October 2010

UN Sanctions Case Goes to Grand Chamber

The idosyncratic case of Youssef Moustafa Nada v Switzerland, an application brought to the European Court two years ago, was relegated to the Grand Chamber of the Court this week. The ordinary Chamber which was to deal with the case has relinquished jurisdiction. The complaint relates directly to the United Nations sanctions regime, set up by the Security Council, against the Taliban and Al-Qaeda. Nada was one of the persons on the sanction lists and lived in a small Italian enclave in Switzerland. Since that country implemented the UN sanctions by refusing access of people on the list to Swiss territory, Nada was de facto locked up in the enclave. These are the facts and Nada's complaints (from the press release of the Court):

The applicant, Youssef Moustafa Nada, is an Italian national who was born in 1931 and lives in Campione D’Italia, an Italian enclave of 1.6 km in the Swiss Canton of Tessin.

On 15 October 1999 the United Nations Security Council adopted Resolution 1267 (1999) providing for sanctions against the Taliban and setting up a Committee responsible for their implementation. On 19 December 2000, by the adoption of Resolution 1333 (2000), the sanctions regime was extended to include Osama bin Laden and al-Qaeda. In its resolutions, the Security Council called upon the Committee to maintain a list of individuals and entities associated with bin Laden and al-Qaeda.

Under those resolutions, on 2 October 2000 the Swiss Federal Council adopted an order laying down measures against individuals and entities associated with Osama bin Laden, al-Qaeda or the Taliban (the “anti-Taliban order”). The order provided for the freezing of assets and financial resources of those concerned, and prohibited the provision to them of funds or financial resources. It further restricted their entry into or transit through Switzerland.

On 9 November 2001 Mr Nada and a number of organisations associated with him were placed on the list of the United Nations Committee. On 30 November 2001 those names were added by the Swiss authorities to the list of people concerned by the anti-Taliban order.

On 22 September 2002 Mr Nada requested the deletion from the list of his name and those of the organisations associated with him, mainly because the Swiss investigation against him had been discontinued.

However, his request and subsequent administrative appeals were rejected. The Federal Council referred his case to the Federal Court, considering that the restrictions on Mr Nada’s property rights had, under the European Convention on Human Rights, to be assessed by an independent and impartial tribunal. On 14 November 2007 the Federal Court dismissed Mr Nada’s appeal. It found that Switzerland had acted in accordance with its international obligations. It nevertheless requested the Swiss authorities to ascertain whether it was possible, having regard to their international obligations, to waive the measure barring Mr Nada from entering the country. As he lived in a small Italian enclave in Switzerland he found himself virtually under house arrest. Mr Nada has stated that following that judgment he has asked the Swiss authorities several times to let him enter or pass through Switzerland, but without success.

Relying on Article 5 §§ 1 and 4 (right to liberty and security), Mr Nada complains that he was deprived of his liberty by the Swiss authorities and had no effective procedure through which to challenge the restrictions on his freedom of movement. He further takes the view that the measures at issue were contrary to Article 8 (right to respect for private and family life). Lastly, he alleges that there has been a violation of Article 13 (right to an effective remedy), in that there was no remedy available in Switzerland by which he could have complained of a breach of Articles 5 and 8.
In many respects this promises to be an interesting case. For one because judicial institutions of the European Union have dealt with similar issues in the past few years, but this is a complaint directed against a non-EU country. Secondly, the ordinary chamber had already allowed France and the United Kingdom to intervene as third parties - one may presume that as permanent Security Council members they have a high interest at stake here. Finally, one could ask whether the Court will really go into the merits of the case or simply declare the case inadmissible as it has done before when state parties act to implement UN Security Council resolutions (the Behrami and Saramati decisions).

See the full press release here. To be continued!

Tuesday 19 October 2010

60 Years ECHR Website

In a few weeks from now, on 4 November, it will be exactly 60 years ago that the European Convention on Human Rights and Fundamental Freedoms was signed in Rome (it entered into force three years later). To celebrate this, the Court has launched a special website. It provides an accessible overview of the key rights and features of the Convention for a wider audience. Full of information sheets, videos, landmark judgments, information per country and much more. Excellent to explain to your familiy and friends what you are actually doing when you work, study or do research in the field of European human rights law!

Friday 15 October 2010

Non-Discrimination, the Military, and Parental Leave

Equal rights for fathers and mothers, should they exist even in the army? That was at issue in the recently decided case of Konstantin Markin v. Russia. It is a case on gender roles in childcare and on non-discrimination in issues of parental leave. The applicant was a father responsible for raising three young children, including a new-born baby, after a divorce. Since he was a military serviceman, he had to ask for permission to take time to care for them for. His request for a period of leave of three years was rejected, since only women were allowed such long periods of parental leave from the military. When he appealed against this in court, the national judges emphasized the special role of women associated with motherhood in order to justify the difference made on the base of sex. They also pointed at the very limited participation of women in military service - to entail that parental leave for them did not endanger any public interest.

The facts of the case gave the Court a chance to issue a judgment on parental leave and the military. It approached the case from the perspective of the right to family life (Article 8 ECHR) in conjunction with the prohibition of discrimination (Article 14). The Court held that Article 8 does not impose any positive obligations on state parties to create parental leave possibilities or related allowances, but that if they did, they should do so in line with the probihition of discrimination. The denial of parental leave to the applicant was based on a combination of sex and military status. especially on the first grounds states always have to put forward very weight reasons to justify differneces in treatment. Most conspicuously, the Court went into the reasoning of russia's Constitutional Court on the roles of parents. The European Court held (para. 48):

The Court is not convinced by the Constitutional Court’s argument that, as far as parental leave is concerned, the different treatment of male and female military personnel is justified by the special social role of mothers in the upbringing of children (see paragraph 19 above). It observes that in contrast to maternity leave and associated allowances, which are primarily intended to enable the mother to recover from the fatigue of childbirth and to breastfeed her baby if she so wishes, parental leave and the parental leave allowances relate to the subsequent period and are intended to enable the parent to stay at home to look after the infant personally. Whilst being aware of the differences which may exist between mother and father in their relationship with the child, the Court considers that, as far as the role of taking care of the child during this period is concerned, both parents are “similarly placed” (see Petrovic, cited above, § 36).
The Court pointed to a growing consensus in Europe on equal rights relating to parental leave, to the effect that Russia could no longer rely on a lack of common European standard. Then the Court noted (para. 49): " Nor can the reference to the traditional perception of women as primary child-carers provide sufficient justification for the exclusion of the father from the entitlement to take parental leave if he so wishes." Old prejudices can thus no longer sustain current practices in this matter. In Russia, the difference at stake relates only to military service personnel (for civilians equal rights exist). Even if in general human rights of the military can be restricted to a larger extent than in other situations, when they relate to Article 8 the margin for states becomes narrower. In this case, Russia had failed to show that allowing parental leave for men would truly endanger the effectiveness of the military (no statistics or other proof) and thus the reasoning of Russia, according to the Court, was based on "a pure assumption" (para. 57). In conclusion, the Court found a violation of Article 14 taken together with Article 8.

It is notable that although this was the first time such a case (parental leave in the military) was decided by the Court, it did emphasize that it concerned a wider problem than the individual case at hand. After all, the discrimination flowed from legislation. Thus the Court recommended under Article 46 ECHR (states have to abide by final judgments of the Court) that Russia amend the relevant law in line with the principles developed in the judgment.

The judgment was arrived at with a vote of six against one: only the Russian judge dissented. Judge Kovler was of the opinion that the reasoning of Russia's national judiciary, which placed more emphasis on the effectivenss of the military (which necessitated placing restrictions on servicemen), was more convincing than the Court's own argumentation. In addition, he concluded that this was an isolated case and that Russia would not need to take general measures. It is always a pity if only the national judge dissents as that might negatively affect the authority of the Court's judgment in the country concerned.

Pride and prejudice - Jane Austen could write another novel on it!

Monday 11 October 2010

An Expert Advisory Panel for Selection of Judges

Last Friday the Parliamentary Assembly of the Council of Europe (PACE) welcomed the call of the Court's president, Costa, to set up an expert panel which could advise state parties about the lists of three candidate judges which they plan to submit to the Assembly. The Assembly once again emphasized the need for "rigorous, consistent, fair and transparent national selection procedures." This has been a key concern of the assembly and of a coalition of NGOs in the run-up to the Interlaken reform meeting of earlier this year. The background report, drafted by Ms Renate Wohlwend of Liechtenstein, can be found here. It includes the letter by Costa to PACE of 9 June 2010 in which the idea was launched. He indicated would urge the Committee of Ministers

to set up rapidly a panel along the lines proposed by the Wise Persons and the Secretary General. Such a panel, which should be composed of senior figures from a relevant background, would intervene before a list was submitted to the PACE by the contracting party so as not to interfere with the PACE’s Convention responsibilities in this area. Moreover, its role would be advisory; in other words it would make recommendations to the nominating State including, as necessary, proposals to modify the list. Such a Panel could be set up without amending the Convention by a decision of the Committee of Ministers.
Costa also refers to the importance of this in relation to the accession of the EU to the ECHR:

One of the critical issues in this context will be the future relationship between the Court of Justice of the European Union and the Strasbourg Court. For that relationship to function it must be based on mutual respect. Since the entry into force of the Lisbon Treaty, appointments to the EU courts are subject to the opinion of an independent panel (Article 255 of the Treaty on the Functioning of the European Union). It is true that the procedure under the Convention is not strictly comparable to the EU appointment process in view of the involvement of the Parliamentary Assembly of the Council of Europe and the additional guarantee which that provides.
After controversies regarding the lists submitted in respect of Malta, Ukraine, Italy, and Greece in the recent past, amongst others, this would seem to be a welcome development to ensure a high quality of judges. I will keep you posted on possible further developments on the proposed panel.

See also this information document of the Committee on Legal Affairs and Human Rights.

Thursday 7 October 2010

Working Paper on EU Accession to ECHR

Tobias Lock of University College London has posted a working paper on SSRN on the upcoming accession of the European Union to the ECHRr. Currently, negotiations on this are ongoing. This is the abstract of the working paper, entitled 'Accession of the EU to the ECHR: Who Would Be Responsible in Strasbourg?':

Chief among the many issues, which an accession of the EU to the ECHR, will raise, is the question of the appropriate respondent before the European Court of Human Rights in cases involving EU law. EU law is typically implemented by the Member States. Against whom should an individual address their individual complaint in a case where they argue that a violation of the ECHR can be found in EU law: the EU or the Member State? This paper discusses various options and proposals made in the wake of the negotiations, which started in July 2010. Both actions and omissions will be dealt with. It is argued that a solution must not only protect the autonomy of EU law but at the same time offer an effective remedy for the individual.

Wednesday 6 October 2010

New Estonian and Greek Judges

Yesterday, the Parliamentary Assembly elected two new judges to the Court, in respect of Estonia and of Greece. The new Estonian judge will be Ms Julia Laffranque, who won an absolute majority of 116 votes, more than her two opponents taken together. Her nine-year term of office will in principle start on 1 January 2011. Ms Laffranque (1973) is currently justice at the supreme court of Estonia and associate professor at the University of Tartu. She was once an ad hoc judge in 2006 at the European Court in the case of Harkmann v. Estonia.

In respect of Greece a very well-known human rights lawyer was elected: Mr Linos-Alexander Sicilianos (1960), again with more votes than his opponents combined. His nine-year term of office will commence on 18 May 2011. He has a few times litigated cases in Strasbourg, is an academic as well, and among many other functions has been a member of the UN Committee on the Elimination of Racial Discrimination.

Congratulations to both!

Tuesday 5 October 2010

PACE Rapporteur Calls for National Application of ECHR Case-Law

Speaking at a conference in the Macedonian capital Skopje last week, Christos Pourgourides, chair of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly stressed the need for parliaments and national judges to take more account of the jurisprudence of the Court. He emphasized that they should even do so when the case law relates to other countries facing the same issue. To illustrate this problem, he used the case of Marckx v. Belgium of 1979. According to the press release, Pourgourides talked about that "ruling against Belgium in 1979 that children born out of wedlock should not face discrimination, pointing out that France changed its law only after the Court made a similar ruling against it in 2000: “Twenty years lost for the victims of such discrimination, and many years of unnecessary litigation!” " Pourgourides also called for increased dialogue between the Court and state parties, e.g. through more third party interventiions by states.

See the press release here, the speech itself here, and the background document here.

Monday 4 October 2010

Case Law Made More Accessible

One of the ways to ease the case-load of the Court is to make the case-law more accessible and more known in the state parties to the European Convention. Thus, in a follow-up to the Interlaken conference earlier this year, the Court itself has introduced two ways for better access to its jurisprudence. The first is that the well-known HUDOC search engine now also contains a list of thematic key words by Convention Article and Protocol, which can be used to use the search form more efficiently.

The second is the launch of a number of electronic factsheets on the Court's jurisprudence. Currently, there are almost twenty of them, relating to e.g. child protection, terrorism, the environment and the very topical Roma and travellers' rights. As an example, consider this factsheet on the ECHR and the European Union, a very concise and informative overview. The sheets include both decided and pending cases and the Court has announced it will update them regularly. One may hope that this will indeed happen regularly; another earlier tool of the Court, the sheets on key case-law issues have, after a promising beginning a few years ago, not been extended or updated since 2007 (as far as I could see) ... One may assume this is a question of both time and funding, but it would be important that the new initiatives will not suffer from a similar fate. For the moment, they are a great improvement for increased access to the Court's case-law.