Happy Everything!

Hey all, just checking-in to wish everyone happiness, joy and 'kupa kasa' for 2012. Whatever you're doing right, keep doing it, and let's meet again in January for more tune-ups, tweaks and spot-checks of our work. :)

Christmas Break

The end of the year is approaching. 2011 was a very eventful year for the European Court of Human Rights. Apart from issuing important case-law, it has also come under intense criticism in some state parties and new reforms to increase its efficiency are again on the table. On a positive note, the backlog in the workload seems in the last few months, according to insiders, for the first time to be slightly decreasing. Let us hope that trend will continue in the new year so that finally the waiting times for applicants will start to decrease in stead of increase. More importantly even, let's also hope that state parties will finally take their part of the subsidiarity principle more seriously, by more effectively protecting human rights close to home, at the national level.

This blog has meanwhile continued to grow, due especially to the support of many readers who provide me with ECHR-related news, events and academic articles. This year, the blog reached over 150,000 pageviews from 178 countries! Please continue to send me your information, views and suggestions for guest posts on case-law - this blog is in many ways, like the Convention, a living instrument! Many thanks to all.

I will be back with new posts in January. I wish all the readers of this blog happy holidays. May 2012 be a healthy and good year for all of you!

Research Reports of the Court

In the course of this year, the registry of the European Court of Human Rights has published a number of so-called 'research reports' online. In the form of succinct handbooks they provide analytical information on the Court's case-law on a (sofar) restricted number of themes:


* Internet: case-law of the Court
* Child sexual abuse and child pornography in the Court's case-law
* Use of Council of Europe treaties in the case-law of the Court
* The role of the public prosecutor
* The freedom of religion (in French)
* Cultural rights

A very useful starting point for researchers and for possible litigants.

New ZaöRV Articles on ECHR

The newest issue of the Zeitschrift for ausländisches öffentliches Recht und Völkerrecht, also known as the Heidelberg Journal of International Law (vol. 74, no. 4, 2012) has just been published. It includes two articles relating to the European Convention on Human Rights:

* Matthias Klatt, 'Positive Obligations under the European Convention of Human Rights'

* Sina van den Bogaert, 'Roma Segregation in Education. Direct or Indirect Discrimination?'

Abstracts are not available.

Lord Irvine's Take on the ECHR

Last Wednesday, Lord Irvine of Lairg, the 'architect' of the Human Rights Act, delivered a lecture at the Bingham Centre for the Rule of Law adding to the discussion on the ECHR in the United Kingdom. The lecture is entitled 'A British Interpretation of Convention Rights'. As Lord Irvine stated at the start of his lecture, he aimed:

(a) to ensure that the Supreme Court develops the jurisdiction under the HRA that
Parliament intended;
(b) that, in so doing, it should have considered and respectful regard for decisions of the ECHR, but neither be bound nor hamstrung by that case-law in determining Convention rights domestically;
(c) that, ultimately, it should decide the cases before it for itself;
(d) that if, in so doing, it departs from a decision or body of jurisprudence of the ECHR it should do so on the basis that the resolution of the resultant conflict must take effect at State, not judicial, level; and
(e) by so proceeding, enhance public respect for our British HRA and the development and protection of human rights by our own Courts in Britain.

Bound to raise more discussion!

ECHR Implementation in Central and Eastern Europe

Frank Emmert, of the School of Law of Indiana University, has posted the findings of an upcoming book ('The European Convention on Human Rights and Fundamental Freedoms in Central and Eastern Europe', Eleven International Publishing, 2012) on SSRN in a paper entitled 'The Implementation of the European Convention on Human Rights and Fundamental Freedoms in New Member States of the Council of Europe - Conclusions Drawn and Lessons Learned', which signals the great amount of work still to be done on ECHR implementation. This is the abstract:

In the book, some 25 authors report on the implementation of the ECHR in their respective countries, including questions of ratification and implementation in law, awareness by legal professionals, inclusion in the curricula of law schools, practice of the courts, cases brought to Strasbourg, and execution of judgments of the EuCrtHR on the domestic level. The Conclusions summarize the findings and make recommendations for better implementation of the ECHR by better protection of fundamental rights and freedoms, more effective national remedies, and pro-active changes of laws, institutions, and procedures, after judgments against other Member States of the Council of Europe.

Op-Ed on European Court

Emma Bonino (member of the Italian Senate and former European commissioner) and James Goldston (executive director of Open Society Justice Initiative) have added their voices to the debate about the European Court of Human Rights. In an Op-Ed published in the online journal European Voice they plead for an independent and strong Court. Here is the first paragraph of the text - the rest can be found on the website of the European Voice:

The UK has yet to put forward firm proposals, but the coalition government has indicated it is considering, among others, steps to give the court more control over its overwhelming docket. This UK government is not the most likely champion of the ECHR: David Cameron, the prime minister, has made it clear he thinks the ECHR has overreached itself, most famously in a 2005 ruling against a blanket British ban on prisoners' voting, which the UK has yet to implement. But what is more important than the specifics presented by the UK is the broader impetus behind the proposals, which would in any case require the approval of all 47 member states. This push to reduce the Court's caseload, and other problems, may determine whether the Strasbourg Court lives or dies.

Paper on National Judicial Treatment of the ECHR

Giuseppe Martinico, of the Centro de Estudios Politicos y Constitucionales in Madrid and the European University Institute in Florence, has posted a paper on the differences and similarities between EU and ECHR law in national legal orders. It is entitled 'The National Judicial Treatment of European Laws: Are National Judges Extending Primacy and Direct Effect to the ECHR?'. This is the abstract:

The aim of this study is to answer the question: “Are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights”? This paper investigates the similarities and differences between the national judicial treatment of the ECHR and EU laws in the context of some selected constitutional experiences. It examines whether or not national judges treat the ECHR and EU law in the same manner, and the extent to which they facilitate the convergence of these laws. In this respect the goal of the project is to study the judicial application of the ECHR and EU law to analyse the vertical relationship between the national judges (both constitutional and ordinary judges) and these forms of external laws. As such, I am not interested in the horizontal convergence between the European Court of Human Rights and the European Court of Justice (ECJ). Rather, my investigation is limited to the vertical dimension of convergence. Obviously these two dynamics are strongly related and both European courts have undergone deep transformations in the last few years, especially after the enlargements of the EU and the Council of Europe.

Important Housing Rights Judgment

What to do when one buys a house or an apartment in good faith, but it later on expires that the original owner had acquired it by fraud? To what extent should the interests of the new bona fide owner then be protected? These questions arose in the case of Gladysheva v Russia in which the Court rendered judgment this week. Svetlana Gladysheva bought an apartment in moscow from an earlier owner. That person had, in turn bought it from a certain Ms Ye, who had bought the (formerly social housing) apartment from the state under a privatisation scheme. Several years later, the authorities found that Ms Ye had bought the flat through fraud and as a consequence they declared that the flat had therefore illegally been removed from the city of Moscow's possession. Although they acknowledged that Gladysheva had bought the apartment in good faith, they revoked her title to the flat and even issued an eviction order.

In Strasbourg ,the applicant complained that the revocation of the title to the apartment was contrary to Article 1 Protocol 1 (P1-1, protection of possessions) and that the eviction order violated article 8 (respect for the home. In its judgment, the European Court of Human Rights indeed found two violations of the ECHR.

As to P1-1, the Court noted that the revoking of the applicant's title was disproportionate. Specifically, the fact that the fraud was only discovered years later was completely due to the authorities themselves. It was not for the applicant, the Court assessed, to (para. 79) "assume the risk of ownership being revoked on account of defects which should have been eliminated in procedures specially designed to do so. The authorities’ oversight could not justify subsequent retribution against a bona fide buyer of the property in question." Moreover, no compensation whatsoever nor any prospect of alternative housing had been offered. The Court concluded that the state should have born the consequnces of its own mistakes and should not have put them on the shoulders of an individual citizen - this constituted an excessive burden.

As to Article 8 ECHR, the Court focused on the eviction order, which in itself amounted to an interference with Article 8 even though it had not been carried out yet (this follows from earlier case-law). The legitimate aim - protecting the rights of people on waiting lists for social housing - was accepted by the Court as a legitimate one. However, automatically ordering an eviction after the ownership rights had been taken away, without taking Ms Gladysheva's interests into account at all, violated Article 8. No proportionality assessment was made, no other individualised interest which would outweigh the applicant's attachment to the flat were shown, and no alternative housing or shelter had been offered.

The Court also ordered a specific form of reparation in this case> Under Article 41 ECHR (just satisfaction) it held that the most appropriate way of redressing the violations - specifically because no countervailing third-party individual interest was at stake - was to simply restore the title of ownership to Ms Gladysheva and to reverse the eviction order. This comes on top of the 9,000 euros which Russia has to pay the applicant for non-pecuniary damages. In the part of the judgement on just satisfaction, the Court re-emphasizes specifically the "central importance of the right to home [sic!] in the Convention hierarchy of rights" (para. 105). Housing issues in relation to Article 8 are of central importance for someone's "settled and secure place in the community" (para. 93).

This judgment sends a clear signal that national authorities should take housing rights, specifically the protection of the home, seriously. Under the ECHR, this is more than a simple property issue - respect for the home also has important social and other connotations which strengthen the protective umbrella of the ECHR (the issue of attachment to a home counts) in such cases. Individual interests based on this should always be taken into account by states when interfering with housing rights. To put it differently, human rights start at home!

Immunity of Judges in Practice

The question of the immunity of judges arose in Strasbourg in the past two months in the context of a search of the Romanian house of judge Corneliu Bîrsan, one of the Court's longest-serving judges (since 1998). The direct reason was that the wife of judge Bîrsan, a judge serving in Romania's highest appeal court, is being investigated for corruption, on the suspicion of accepting bribes (jewellery and travels). When the couple's home was searched in Romania, this raised problems with regard to immunity of judges of the European Court of Human Rights. On 10 October the President of the European Court issued a statement in which he indicated that immunities of Strasbourg judges in principle also cover their spouses (under the Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe and Article 51 of the European Convention on Human Rights) and showed his concern that Romania had not requested a waiver of immunity. As the press release states:

"in carrying out a search in the home of the Romanian judge as part of an inquiry concerning allegations about his wife the rules on immunity may not have been respected. The Court has requested the Romanian Government to indicate whether they have grounds for asking the Court to waive the judge’s immunity. Under the terms of Article 4 of the Sixth Protocol only the plenary Court is empowered to waive a judge’s immunity."

This wake-up call led to a Romanian reaction only after a few weeks. On 16 November Romania asked for such a waiver. Within a week, the plenary Court decided to allow a waiver of imunity for judge Bîrsan's wife but not for himself and only to the extent "strictly necessary for the investigation". It added that this waiver has no retroactive effect. The earlier search is thus in principle still contrary to the Protocol on privileges and immunities. As to the political side of the matter, Romania is currently being monitored by the European Commission as part of post-accession mechanisms of the European Union. One of the main points of concern is the extent to which the country is serious about its fight against corruption. Even this battle itself, however, will have to comply with the rule of law.

See also coverage by the EU Observer here and here.

Admissibility Checklist

Today, the Court launched yet another tool to make sure no clearly inadmissible applications are lodged in Strasbourg: an admissibility checklist. Whereas previous efforts were focused to a large extent on lawyers, this new initiative is aimed at the applicants themselves. In the Court's own words, with caveats well-known to anyone trained in law:

The Court is today publishing an on-line admissibility checklist which is designed to help potential applicants work out for themselves whether there may be obstacles to their complaints being examined by the Court. The checklist has been developed against the background of the continuing massive inflow of inadmissible applications which represent a heavy burden for the Court and its Registry and contribute to preventing well-founded cases from being decided in a timely fashion. The checklist is purely indicative and has no legal force. Nevertheless it is hoped that it may serve to save applicants the time and frustration which pursuing an inadmissible application entails.

One may note that before one gets to the actual checklist a page with number about the high numbers of inadmissible cases appears, an implicit dissuasive tool or just a factual warning?