ECHR Articles in Liber Amicorum Pieter van Dijk

A liber amicorum for the recently retired Dutch jurist Pieter van Dijk, also a former judge at the European Court of Human Rights, has been published with Intersentia. It is entiteld 'Fundamental Rights and Principles. Liber Amicorum Pieter van Dijk' and includes the following directly ECHR-related chapters:

* Fried van Hoof and Leo Zwaak, 'The Concurring and Dissenting Opinions of Pieter van Dijk as a Judge of the European Court of Human Rights'.

* Egbert Myjer, 'Pieter van Dijk and His Favourite Strasbourg Judgment. Some Remarks on Consensus in the Case Law of the European Court of Human Rights'.

* Janneke Gerards, 'Judicial Minimalism and ‘Dependency’. Interpretation of the European Convention in a Pluralist Europe'.

* Giorgio Malinverni, 'Switzerland before the European Court of Human Rights'.

* Martin Kuijer, 'The Impact of the Case Law of the European Court of Human Rights on the Political Debate in the Netherlands concerning the Court'.

* Thijs Drupsteen, 'Environmental Protection under Article 8 of the European Convention on Human Rights'.

* Zdravka Kalaydjieva, 'State Obligations to Adequate Judicial Response in Cases under Article 2 of the Convention. Issues of Admissibility'.

New ECHR Publications

Please find below another batch of new academic articles on the European Convention of Human Rights:

* E. Brems and L. Lavryse, 'Procedural justice in human rights adjudication: the European Court of Human Rights', Human Rights Quarterly, vol. 35, no. 1 (2013)  pp. 176-200.

* L. Groen, 'The ‘Iukos affair’. The Russian judiciary and the European Court of Human Rights', Review of Central and East European Law, vol. 38, no. 1 (2013)pp. 77-108

* K. Margaritis, 'The framework for fundamental rights protection in Europe under the prospect of EU accession to ECHR',  Journal of Politics and Law, vol. 6, no. 1 (2013) pp. 64-79.

Finally, for those who read French, the newest issue of the Revue trimestrielle des droits de l'homme, No. 94 (April 2013) has been published. ECHR-related content includes::

* Béatrice Pastre-Belda, 'La Cour européenne des droits de l’homme - Entre promotion de la subsidiarité et protection effective des droits'.

* Benoit Frydman, 'L’arrêt RTBF c. Belgique : un coup d’arrêt au contrôle judiciaire préventif de la presse et des médias' (obs/s. Cour eur. dr. h., RTBF c. Belgique, 29 mars 2011).

* Steve Gilson & France Lambinet, 'La liberté d'expression syndicale' (obs/s. Cour eur. dr. h., Gde Ch., Palomo Sanchez e.a. c. Espagne, 12 septembre 2011; Cour eur. dr. h., Vellutini et Michel c. France, 6 octobre 2011) .

* Dimitri Yernault, 'Expropriation déguisée, impôt et droit de propriété : l’affaire Yukos, un épisode de la guerre des oligarques russes devant la Cour européenne des droits de l’homme' (obs/s. Cour eur. dr. h., OAO Neftyanaya Kompaniya Yukos c. Russie, 20 septembre 2011) .

* Valérie Junod, 'Transparence contre confidentialité' (obs/s. Cour eur. dr. h., Gde. Ch., Gillberg c. Suède, 3 avril 2012) .

* Nicolas Hervieu, 'Le droit de vote des détenus : histoire sans fin pour un contentieux décisif' (obs/s. Cour eur. dr. h., Gde Ch., Scoppola (n° 3) c. Italie, 22 mai 2012).

* François Finck, 'L’application de sanctions individuelles du Conseil de sécurité des Nations Unies devant la Cour européenne des droits de l’homme' (obs/s. Cour eur. dr. h., Gde Ch., Nada c. Suisse, 12 septembre 2012)

* Michel Puéchavy, 'Une amnistie générale ne peut couvrir les crimes de tortures et de traitements inhumains et dégradants' (obs/s. Cour eur. dr. h., Margus c. Croatie, 13 novembre 2012)

New Book Constituting Europe

Next month, the book 'Constituting Europe. The European Court of Human Rights in a National, European and Global Context' will be published by Cambridge UP. It was edited by Andreas Follesdal, Birgit Peters, and Geir Ulfstein. It especially looks at multilevel issues of interaction of the Court with other institutions. The proofs are already available on google books. This is the abstract:

At fifty, the European Court of Human Rights finds itself in a new institutional setting. With the EU joining the European Convention on Human Rights in the near future, and the Court increasingly having to address the responsibility of states in UN-lead military operations, the Court faces important challenges at the national, European and international levels. In light of recent reform discussions, this volume addresses the multi-level relations of the Court by drawing on existing debates, pointing to current deficits and highlighting the need for further improvements.

Tymoshenko Judgment - Former Ukranian Prime Minister Arbitrarily Detained

Today, the Court issued its judgment in the very sensitive case of Yuliya Tymoshenko, the currently detained former prime minister of Ukraine. Tymoshenko's predicament has already led to political tensions within Ukraine, obviously, but also between Ukraine and other countries (as well as the EU). The Court now adds its voice to the chorus of criticism, by finding a number of violations. Most importantly, it held that the detention was arbitrary (several violations of article 5 ECHR) and a violation - very rare - of Article 18, the provision which holds that "shall not be applied for any purpose other than those for which they have been prescribed." No violation of her detention conditions (Article 3) was found, although the Court was divided on the latter issue. Although the judgment in itself is a quite damning verdict on the state of the rule of law in Ukraine, the concurring and dissenting opinions go even further in pointing at some very problematic aspects. The press release can be found in Englis here and in Ukranian here.

PACE Approves Draft Protocol 15

Today, just before the start of the weekend, the Parliamentary Assembly of the Council of Europe (PACE) approved Draft Protocol 15 to the ECHR. With a large majority it voted in favour. Without any amendment being necessary in the view of PACE, the Draft Protocol can now be adopted by the Committee of Ministers at its next session and be opened for signature and ratification. For more on  Protocol 15, see my earlier post here. For the press release of PACE, see here.

Seminar on ECHR and Detention Conditions

The Academy of European Law (ERA) is organising a seminar in Strasbourg on 20-21 June on 'The European Convention’s, European Court of Human Rights’ and national courts’ roles in improving conditions related to detention.' The seminar will analyse the roles of the European Convention on Human Rights and the European Court of Human Rights, as well as that of national courts, in improving conditions related to detention. It is geared towards judges, prosecutors, lawyers in private practice, ministry officials, and officials from judicial training institutions, prison administrations, the probation system and prison monitoring bodies. For more information, see here.

Animal Defenders International v. UK Grand Chamber Judgment - Ban on Political Advertising Upheld

At the start of this week, the Grand Chamber of the European Court of Human Rights upheld the United Kingdom's ban on political advertising for TV and radio in Animal Defenders International v the United Kingdom. The NGO Animal Defenders International had been refused permission to have their commercial aired, which was geared against the use of animals for commercial and leisure reasons (circuses, zoos, advertising) and scientific testing.

For many reasons this is a very interesting judgment, not in the least because the Grand Chamber was divided to the bone and one can sense some of the intense discussions that must have been going on in the Court from the various separate opinions. In addition, one may wish to compare and contrast the European Court's treatment of the issue to that of the US Supreme Court a few years ago (Citizens United). More or less explicitly, the judgment also reveals different ideas about the democracy and the role of freedom of expression therein. Although the judgment deviates from previous case-law, I tend to agree with the (very slight) majority's concern over the risks posed by "wealthy bodies with agendas being fronted by social advocacy groups created for that precise purpose" (para. 122). This does not mean that such a kind of ban would offset any undue influence, since other media are still open, nor does it address more indirect, less open ways of influencing and lobbying of course. Although some of the dissenters state that a "robust democracy is not helped by well‑intentioned paternalism", one may also not wish to end up in the situation which currently exists in the US where paternalism (in this particular sense at least, not in others) may be absent and where democracy is seen to be robust, yet intensely flawed amongst others because of political advertising. Whatever one may think of it, the issue is very difficult obviously, since a general ban also has huge disadvantages. Lawyers and academics studying law may instinctively be more drawn to systems in which every instance can be individually assessed by a judge rather than by general bans. It would therefore also be interesting to see what media researchers would make of this ban and this judgment. Also, behind the different views lie different philosophies about human nature and about the extent to which one can trust the state. Another aspect is that the emphasis put on the margin of appreciation and the exacting review of the UK's ban both by Parliament and the judiciary, may be seen by some as either a form of judicial dialogue ("listening" to what national judges and authorities say) or as a form a cautious judicial politics after the stand off in the prisoners voting cases.

For your convenience, please find here an overview of some of the early comments on the case online:

- UK Human Rights Blog, 'Strasbourg ties itself in knots over advertising ban' (calling it a "profoundly ad day for democracy");

- Inforrm's Blog, 'A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio' (referring to the judgment as "a pleasant surprise" for the realism it reflects);

- Strasbourg Observers, 'Ban on Political Advertising Does Not Violate Article 10: Animal Defenders International v. UK' (indicates that the judgment "departed substantially from the Court’s previous case law on political advertising, and introduced a new method for reviewing the proportionality of such blanket-bans.");

- European Courts Blog, 'Free speech, politics and animal rights'.

The press release of the judgment can be found here.

Russian Version of Court's Anniversary Book Presented

Earlier this week, the Russian translation of the Court's anniversary book (which dates from two years ago - see here) was presented. It will be distributed to 5,000 local judges and prosecutors in Russia. Symbolic as this may be, more important for practice is a parallel project running currently: bit by bit, commissioned translations of key ECHR case-law in Russian are being made available in HUDOC (clock on the language refiner option on the left of the HUDOC search screen to choose Russian and you will find them). In addition, Russian translations of research reports, fact sheets and case-law guides are being put on the Court's website. This is the press release about the book:

The Russian edition of the Court’s anniversary book The Conscience of Europe: 50 Years of the European Court of Human Rights is being launched today in Moscow in the presence of representatives from governmental bodies, legal professions, civil society and various media outlets.

The Russian edition was published in co-operation with iRGa 5 Ltd. (Moscow) and Third Millennium Information Ltd. (London). The richly-illustrated book is in large-format and comes with updated and additional content tailored to the Russian-speaking readership. In connection with the launch of the Russian edition, President Dean Spielmann stated:

“I should like to thank the Supreme Court and the Prosecutor General’s Office of the Russian Federation, which supported this project and will be helping to disseminate the book in Russian legal circles. The Court has many friends in Russia and I know they were eagerly awaiting this translation. For those Russian-speakers who do not yet know our Court, or do not know it well and would like to learn more, this anniversary book is the perfect place to start.”

The Court’s anniversary book was published in early 2011 – with the help of a generous contribution from the Ministry of Foreign Affairs of the Grand Duchy of Luxembourg – to conclude the celebrations marking the Court’s 50th anniversary in 2009 and the 60th anniversary of the European Convention on Human Rights in 2010.

The original editions in English and French are no longer available from the publisher but can be downloaded from the Court’s Internet site. Excerpts from the Russian edition will also be made available online at a later date.

New Case Law Developments in Removal and Extradition

Last week, the European Court of Human Rights issued two judgments and an important decision, all dealing with state-enforced transfer of people from one state to another. One case is about the extradition of a suspected criminal to the United States, another about the extradition of an asylum seeker to Chad, and yet another about the removal of an asylum seeker to Italy. For the readers convenience, I shortly mention them here:

* In Aswat v. the United Kingdom the Court held that a detainee with paranoid schizophrenia could not be extradited to the United States. Aswat, who had been charged in the US as a co-conspirator in a conspiracy to establish a jihad camp in Oregon, would have face potentially very high penalties and possible detention in solitary confinement in a maximum security facility. What is interesting about this judgment is that these latter factors by themselves would not subject a person extradited to the US to treatment contrary to Article 3 ECHR. Indeed, the Court had decided this in Babar Ahmad and others v. the United Kingdom, earlier this month (a case from which Mr Aswat's case was originally part, but later detached). In Aswat the Court is therefore as explicit as it possibly can to stress that his mental condition was the sole reason that he could not be extradited. In the UK he was detained in a high security psychiatric hospital. As the Court noted, a "different, and potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health" (para. 57) to he extent of potentially reaching the Article 3 threshold.

* In Mo.M. v. France, the Court held that France could not send back to Chad an asylum seeker whose request for asylum had been rejected. The applicant had argued that he would face a real risk of inhuman and degrading treatment if being sent back to Chad, since he was suspected of having collaborated with the rebels in neighbouring Darfur in Sudan and had earlier already been tortured in Chad. On the general situation, the Court noted that in spite of a peace agreement between Chad and Sudan, the situation remained very tense, with all the accompanying risks for people suspected of collaboration. On the applicant's personal situation the Court held that medical certificates indeed established hat he had been tortured and that his particular profile (an arrest warrant having been issued against him in Chad and his open activities in France for a Chadian opposition party), made the risk of ill-treatment real. One may note that the Court also chastises the French authorities: the Court normally does not want to place itself in the shoes of the national authorities to adjudicate such a situation, but since the asylum request was refused without much explanation ("une motivation très succincte" and "aucun élément explicatif", para. 41) it is different here. National authorities, it once more becomes clear should thus argue their decisions, also in asylum cases. In addition, the Court indicates that although the applicant had initially requested asylum under a false identity - and no matter how much also the Court may criticise that - this in itself is not a sufficient reason to reject an asylum claim if there is evidence presented during such a demand for asylum that a real risk of treatment contrary to Article 3 exists (para. 41). Since this latter issue is a problem in many state parties, this part of the judgment may prove to be important for the practice of dealing with asylum claims. This judgment is available only in French, but a press release in English is available here.

* Finally, the Court also declared a complaint inadmissible: Mohammed Hussein v.the Netherlands and Italy. In many ways this is a situation comparable to the now famous M.S.S. v. Belgium and Greece case of last year, in which the Court held both states to account. Here as well, the European Union's Dublin Regulations, which provide that an asylum seeker can be returned to the first country of entry in Europe in order to process the asylum request there, were the trigger for the situation. A Somali asylum seeker (originally alone, but since then two children were born) had entered Europe through Italy and then travelled on to the Netherlands. The Court held that even though there were shortcomings in Italy's reception schemes for asylum seekers, these were not so deficient or systematic that they reached the threshold of Article 3 (and here one may note a stark contrast with the Courts' conclusions on conditions in Greece in M.S.S.). Although the Court also assessed the personal situation of Ms Mohammed Hussein, the decision will more generally be important for all states who under the Dublin regulations are in the process of sending people back to Italy.

For an up-to-date discussion of migration and returns in the EU context, with comparisons to US and ECHR case-law, see: Nicholas Hatzis, 'Detention of Irregular Migrants and the European Public Order', European Law Review, issue 2 (2013) pp. 259-276.

Article on Draft Protocol 16

Dr Paul Gragl of the City University London has written an article about the Draft Protocol 16 (yet to be formally adopted). The article, entitled '(Judicial) Love is Not a One-Way Street: The EU Preliminary Reference Procedure as a Model for ECtHR Advisory Opinions under Draft Protocol No.16'. The article will appear both in the European law Review (April 2013) and in European Current Law (Issue 6 of 2013). This is the abstract:  

Owing to the overwhelming number of applications before the European Court of Human Rights (ECtHR), Draft Protocol No.16 proposes the introduction of a new advisory opinion procedure. This procedure aims at alleviating Strasbourg’s judicial workload by enabling the domestic courts of the contracting parties to request advisory opinions on alleged human rights violations, which could in turn serve as precedents for future applications. The principal purpose of this article is to present the most important provisions and legal consequences of the newly proposed advisory opinion procedure; but also, as this procedure draws certain inspirations from the European Union’s preliminary reference procedure, the article aims to contrast these provisions with their respective counterparts in EU law (with respect to both the implications and legal effects of art.267 TFEU (ex art.234 EC) and Court of Justice case law); to examine the similarities and differences between those two mechanisms; to show legal difficulties that may arise owing to the proposed advisory opinion procedure; and to explore the extent to which Strasbourg could use Court of Justice case law to develop its advisory opinion jurisdiction further.