Tuesday 14 May 2013

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'.

Monday 13 May 2013

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)

Thursday 9 May 2013

Prior Vs. Previous



Mr. Richard Pryor. One of the greatest comedians of all time.

I thought about pacing myself here, perhaps even being stingy with the new material, because you know that one day it’ll dry up again, and then we’ll be on hiatus for another thousand years. But, if I have something nice I can’t wait to share it, even if it crumbles slightly in the sharing. So having said all that, here, have a slice of crumbly, sticky, Word pie...

Prior and previous are aninteresting pair of words that suffer from similar problems  as start and begin, and end and finish. They are largely synonymous, but prior also has an extra definition, and sometimes this creates discord in the rhythm of a sentence. Let’s look at those definitions:

1. Previous (adj) Existing or coming before in time or order.
2. Prior (adj) Existing or coming before in time, order or importance.

The classic example of prior’s extra definition is, ‘I’m sorry Piotr, I can’t meet you on Tuesday as I have a prior engagement.’ Here, priorfulfils all of its duties. The obvious fact is that the speaker has already agreed to do something else on Tuesday, before they were invited somewhere by Piotr. The implied fact is that this is not something that can be cancelled or rearranged  Maybe it’s a job interview, or a funeral, or a date with someone hot? Otherwise, hanging out with Piotr would be the happening thing on Tuesday. 

As far as our translations go, the problem is that we’re using priorwhen what we need to use is previous. To simplify, prior works at its absolute best when it’s prior to (which is generally less of a problem, interestingly).

In the following examples, prior is being used incorrectly:

- These financial statements do not cover any events related to prior years.
- The prior year’s losses did not impact heavily on our financial standing.
- Increased sales throughout 2011 created significant profits compared to the prior year’s    figures.
- In prior years, the lack of our own facilities has made this a problematic area.


Now let’s do them again, with previous:
- These financial statements do not cover any events related to previous years.
- The previous year’s losses did not impact heavily on our financial standing.
- Increased sales throughout 2011 created significant profits compared to the previous year’s   figures.
- In previous years, the lack of our own facilities has made this a problematic area.

Do they read any better to you now? To anglik eyes (and ears), the sentences flow more smoothly, like hot chocolate dripping off a golden spoon into a lake of melted marshmallows.


Because I love you all so much, here's the recipe too!

Now, here are some goodexamples of prior (all from our concordance, all from different clients). None of them would work with previous, and all of them work because they come with the extra nutty crunch of to.

- Prior toreceiving the new information, we had thought the task impossible.
- Carrying amount prior to acquisition…
 - The number of shares held prior to the change is not larger than it was previously.
-  Writers must submit their manuscripts for editing prior to their publication.
- The Purchaser agrees to take control of the Company prior to the closing date of the sale.

There are two reasons for all of this chocolaty, nutty mess. The first is that, in terms of prior’s 4th sense, the year before does not inherently take precedence over this year in terms of importance. The second is that using prior alone as your adjective sounds odd, even in stiffer, more formal contexts.

Final thought: There are times when prior does work on its own, or when it’s part of an established phrase. If any of you deal with accounting translations, you’ll doubtless be familiar with the IFRS and their thrill-a-minute IAS(International Accounting Standards). Within these standards, there are several uses of prior which conflict with what I’m saying above (prior year, prior period i inni). Remember, what the IFRS say, we must do, so don’t change your habits there!

 Another one of Rich, because I do so love him.

Thursday 2 May 2013

Start Vs. Begin

 I would say 'Sorry I was away so long', but I suspect the silence was golden ;)

This is something I was asked about recently by one of my new colleagues. (By “new colleagues” I mean ‘one of my colleagues in the translating office that I work in at my new job (yes, I am once again gainfully employed and free of the glass-walled tyranny of freelancing from home – hence the new material. ;)).
Let’s begin, as we traditionally do, with the OED definitions:

begin(v) 1) perform or undergo the first part of an activity; 2) come into being, or have its starting point at a certain time or place

Jakub had just begun a life sentence for murder.
It was beginning to snow.
The cycle path begins at the base of Kopiec Kościuszki.
Our story begins in France, in 1412.
The event began quietly, with minimal fuss or bother.
The road to understanding begins with one small email.
We began unpacking the sniper rifle after the proofreader had left the building.

start(v)
1) cause to happen or begin; 2) to cause a machine to begin operating; 3) begin or be reckoned from a particular point in time or space

Two men started the fire.
I’m starting a campaign to get the law changed.
It began to be obvious that he wasn’t a real  policeman when his gun started leaking.
The kids had already started eating by the time I sat down.

He started the car and drove off.
The lawnmower started with a bang and sped off through the grass.

Now, I’ve been working on this for a while, and I have found it to be quite unsatisfying. There is a great degree of interchangeability between startand begin, and sometimes they’re not interchangeable at all, so it’s very hard to say ‘Do it this way and you’ll always be right’. However, if we look at those dictionary definitions again, we can see something that might help increase our confidence about their use, or at least provide a reliable mental check:

A great song from a great band. If you like songs with proper narratives, give them a listen.

Startis active, begin is passive. In other words, things that start often imply deliberate action, while things that beginoften do so without our intervention.
You can still see that either word could have either quality, but it’s as good a way of putting this idea as any that my stupid brain can come up with. There are other considerations too, but we’ll burn those horses when we cross them. In the meantime, let’s see how the active/passive idea applies to our own examples:

The cycle path begins at the base of Kopiec Kościuszki.
The road to understanding begins with one small email.
Good. A path, road or track etc is an inanimate thing that lies passively on the ground and needs no initial work to be usable. This also works for our figurate ‘road’.

We began unpacking the sniper rifle after the proofreader had left the building.
Could be either, depending on the construction of the sentence. From my own point of view, start, which collocates with finish (as begin collocates with end, (more on this later)), implies a definite, measurable process, while begin is something more meandering and lazy – this ties in with the active/passive idea. Therefore, if we were in a race to unpack the rifle and blow the proofreader’s brains out, we would better start to do so, but if there was no specific, defined reason to hurry, begin wins.

Our story begins in France, in 1412.
Definitely begin. We can start reading a book (we take it from the shelf, open it up and go to the first page), but we begin to read. Of course, we could startreading, but again, it’s not a race.

It was beginning to snow.
You could phrase it either way, depending on the tense and construction, but if you want to make it simple, remember the active/passive rule. We humble worms cannot magically cause it to snow; mother nature has to do that for us.

The event began quietly, with minimal fuss or bother.
From my point of view, began works the best here because although ‘an event’ technically requires someone to switch on a speaker, unlock a door, cut a ribbon, tap a microphone etc, crucially it is not us ­– the audience, spectators, experiencers etc ­– doing it. Therefore, almost like the falling snow, it is beyond our control; we must wait passively for the event to begin. (weren’t expecting philosophy, were you?).

 "Press START to begin" is a typical bit of videogame phrasing, but try finding a good picture of it!

Two men started the fire.
He started the car and drove off.

The lawnmower started with a bang and sped off through the grass.
In contrast, one does not usuallyhang around waiting for fires to begin. Rather, somebody has to get their hands dirty (or bum a lighter off somebody else) and apply it to something flammable. Hence, start is our champion here. So fires, like machinery and equipment, need active human intervention to get going.

I’m starting a campaign to get the law changed.
Mostly start, although it could also depend on the tense. A campaign is not a machine the way a motorcycle or lawnmower is, but it is a quite complicated process in and of itself. Political campaign, campaign strategy, propaganda campaign – not simple ideas. We could say, ‘He began a campaign to free Jakub from jail’, which works well for being  past simple. Whereas, ‘He’s starting a campaign to…’ doesn’t sound right, for being present continuous. Instead, this tense needs begin, as in our law-change example above. (I might have dug myself a terrible hole here, but my brain refuses to think too far ahead on this topic ;).

The kids had already started eating by the time I sat down.
Well, one starts doing things – “deliberate action”. She started a fire, he started the car, they started eating, so this one’s okay.

It began to be obvious that he wasn’t a real  policeman when his gun started leaking.
Hmm. By our current logic, the gun would have to begin leaking. But ‘…his gun beganleaking’ doesn’t – to me, anyway – sound as good here. Started does work for me though, because it has more impact, and serves to make a humorous sentence more funny. Funny because our would-be policeman’s own weapon seems to be conspiring against him, and as a rule, the idea of inanimate objects rebelling against their owners is a pretty funny one. (How about that crazy lawnmower, eh?). What this means then, is that there will be occasions when considerations of tone, style and register play a part in our choice. There might also be a tense issue here (other than the tension headache this piece is giving me). What do you guys think?

Well, it’s a nice little can of worms we’ve got going, so let’s sit back and see how many escape. Before I go, there’s one more thing that I want to share with you: If our idea about start and begin is reasonably sound, how far can we apply it to finish and end? Think about that for a while too, and we’ll cover it in a future post.

Don’t forget to come and visit our Facebook page, where you can discuss this and any other language questions with other translators, linguists and language learners.

     - Jim :-) (with especial thanks to M.B. for the original question, and the wise and munificent Dotty, without whom this piece would be utterly worthless).


Finally, Ghostbusters. Because a) they're awesome, and b) they kept showing up in the
'start begin' image search I did for these pictures. :D














Wednesday 1 May 2013

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.

Tuesday 30 April 2013

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.

Friday 26 April 2013

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.

Thursday 25 April 2013

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 wellintentioned 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.");

The press release of the judgment can be found here.

Wednesday 24 April 2013

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.

Tuesday 23 April 2013

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.

Thursday 18 April 2013

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.

Wednesday 17 April 2013

NGO Reaction to Draft Protocol 15 and Comment

Dear readers, it is my pleasure to host another guest post on this blog. This time by dr Kanstantsin Dzehtsiarou of the University of Surrey. He has written some short comments on the very recent Open Letter of a group of leading human rights NGOs directed at all ECHR state parties. The letter, published on 15 April, reflects the concerns of the NGOs about the way the margin of appreciation is mentioned in the proposed amended preamble to the Convention. As most readers will know, currently the notion of the "margin of appreciation" does not explicitly feature in the Convention, but has been developed in the Court's case-law. The NGOs recommend to change the wording by adding one single word: 'may'. Please read the commentary on this particular point:


Much Ado About Nothing
Dr Kanstantsin Dzehtsiarou
On 15 April 2013, a number of well-known and highly respected NGOs including Human Rights Watch, European Human Rights Advocacy Centre, Helsinki Foundation for Human Rights and others sent an open letter to the Ministers of Foreign Affairs and Permanent Representatives of all member states of the Council of Europe urging them to change Article 1 of the new Protocol 15. In the letter, the NGOs criticise the wording of the provision.

According to Article 1 of Protocol 15 the following statement should be added to the Preamble of the Convention: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and in doing so enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.” This amendment is the direct consequence of the Brighton Declaration (2012) according to which “for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the Preamble to the Convention…” (para 12b).

The letter of the mentioned NGOs emphasises that the doctrine of the margin of appreciation is not applicable in relation to certain rights enshrined in the Convention and that this aspect of the doctrine is not properly reflected in the wording of Article 1 of Protocol 15. They mention that “the current text of Article 1 of draft Protocol 15 is open to interpretation contrary to … long-standing reality of the Court’s practice when it makes the unqualified assertion that when implementing the Convention rights and freedoms states “enjoy a margin of appreciation”, thus appearing to ignore that no such margin of appreciation exists when it comes to implementing provisions such as those on the prohibition of torture or slavery”. The NGOs suggest changing the wording of Article 1 of Protocol 15 from “the States enjoy a margin of appreciation” to “the States mayenjoy a margin of appreciation”.
To my mind this battle around the margin of appreciation is much ado about nothing. The doctrine of the margin of appreciation was developed by the European Court of Human Rights itself, without this doctrine being mentioned in the Convention. The Court has been applying this doctrine since the Handysidecase in the 1970s. It is unclear how the reference to the margin of appreciation in the Preamble to the Convention will influence the interpretation of the Convention by the Court. One can recall that the Court mentions the Preamble quite rarely and one can argue that it has predominantly a rhetorical value rather than a legal one. One can, however, suggest that after been included into the Preamble the doctrine of margin of appreciation will be more often invoked by the member states both in their submissions to the Court and in public speeches. Having said that, the states’ officials use the margin of appreciation extensively in their rhetoric without it being a part of the Preamble.

Before turning to the amendment suggested by the NGOs, I would like to briefly summarise the meaning of the margin of appreciation. Despite being used in a significant number of cases, the definition and the boundaries of the margin of appreciation cannot easily be established. The Court has never clearly defined what it means by ‘margin of appreciation’. In academic literature, the margin of appreciation has been defined as ‘the latitude allowed to the member states in their observance of the Convention’ or as a way to distinguish matters that can be decided at the local level from the matters that are so fundamental that they should be decided regardless of cultural variations. Another reason why the mentioning of the margin of appreciation would have little impact is because it is hardly possible to clearly define where the margin of appreciation ends and the Court’s supervision begins. As Lord Lester famously stated, the margin of appreciation is as slippery and elusive as an eel. The draft Brighton Declaration which was proposed by the UK suggested inclusion of the definition of the margin of appreciation in the text of Convention. This suggestion luckily was not adopted because it would have been a legal drafting disaster as mentioned above.

It seems that the letter from the NGOs is designed to minimise the damage of explicitly including the doctrine of margin of appreciation in the Preamble - an inclusion which I believe will not have noticeable effects anyway. The amendment suggested by them will do even less than the inclusion of the doctrine of the margin of appreciation itself. The NGOs mentioned that the doctrine of the margin of appreciation is not applicable in relation to some provisions of the Convention (the prohibitions of torture and slavery). One should recall, though, that these articles enshrine procedural obligations and not only substantive ones. It is clear from the Court’s case law that there is no margin of appreciation in relation to the question of whether to torture someone or not but the State can have some margin in deciding what the best way is to investigate torture. Alternatively in relation to slavery – there is no one uniform legal regime in implementing the prohibition of slavery – the States are able to choose between certain alternatives.