German Book on Pilot Judgments

A new book (in German) on the topic of pilot judgments has been published. Jörn Eschment has written Musterprozesse vor dem Europäischen Gerichtshof für Menschenrechte. This is the abstract:

Ende 2009 waren beim Europäischen Gerichtshof für Menschenrechte rund 120.000 Beschwerden anhängig. Großen Anteil an dieser Beschwerdeflut haben massenhafte Parallelverfahren, also tatsächlich und/oder rechtlich gleichgelagerte Fälle, die in strukturellen Dysfunktionen der nationalen Rechtsordnungen wurzeln. Als Reaktion auf die zunehmende Arbeitsbelastung durch Parallelverfahren hat der Gerichtshof bereits im Jahr 2004 völker(verfahrens)rechtliches Neuland betreten und erstmals ein Piloturteilsverfahren eingeleitet. Seither haben die Straßburger Richter mehrfach und in verschiedenen Varianten auf diese neue Verfahrensweise zurückgegriffen. Gleichwohl ist deren Entwicklungsstand bis dato allenfalls als embryonal zu bezeichnen. Die Arbeit untersucht Theoriehttp://www.blogger.com/img/blank.gif und Praxis solcher Musterverfahren und lotet ihre Probleme und Perspektiven als prozessuale Strategie im Kampf gegen Parallelverfahren aus.

For more on pilot judgments, see also:

* Philip Leach and others, 'Responding to Systemic Human Rights Violations'.
* And my own: 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges' on SSRN.

Article on European Consensus in Public Law

The article 'Does consensus matter? Legitimacy of European Consensus in the Case Law of the ECtHR' by Kanstantsin Dzehtsiarou has just been published in Public Law (July 2011 issue, pp. 534-553). I reported on the working paper earlier here. This is, in short, what the article is about:

International tribunals including the European Court of Human Rights (“ECtHR”) face a substantial structural handicap: they operate in a system which lacks the coercive force to enforce their judgments. Thus, to at least some extent, the execution of their judgments depends on them issuing rulings that are considered legitimate by reference to the method of their reasoning. One of the methods of reasoning commonly applied by the ECtHR is that of “European consensus”; an argument based on comparative analysis. While “European consensus” is used by the court, the Convention itself does not contain any definition, criteria or regulation of the concept. Moreover, the ECtHR has not clearly defined what it means by European consensus and it has not been analysed systematically in academic work.

This paper argues that European consensus as employed by the ECtHR is a legitimising tool, but that its potential can be unlocked only if the court clearly states its meaning and application. It is a legitimising method of reasoning because it brings clarity and foreseeability to case law in relation to almost all Convention rights, although it has never been the sole basis of a judgment and therefore plays a subsidiary, albeit important, legitimising role.

Part one considers the general framework for the analysis of legitimacy. It addresses general concepts of legitimacy and considers the factors that are relevant in the assessment of the legitimacy of an argument the ECtHR incorporates in its reasoning. It is suggested that European consensus should be sufficiently persuasive and procedurally clear if it is to enhance legitimacy. Part two deals with the crisis of legitimacy relative to European consensus that has been articulated by some
commentators. It identifies those weak points that can be mitigated through clarity and transparency of the court's reasoning. Part three defines the European consensus as it is used by the European Court. The logic that is used by the court in identification of consensus is used by national and international tribunals all over the World. This part outlines and analyses the different types of consensus considered by the ECtHR.

PACE Calls for More Active Role of National Parliaments

The implementation gap between standards and practice is a recurring issue - and rightly so - in discussions on human rights, also in the context of the ECHR. One way to increase correct and more speedy implementation is to activate national parliaments. This is what the Parliamentary Assembly (composed of national parliamentarians) emphasized in a resolution (no. 1823) adopted last week, entitled 'National parliaments: guarantors of human rights in Europe'. This is the text of the resolution:

1. The Parliamentary Assembly recalls that Council of Europe member states are responsible for the effective implementation of international human rights norms they have signed up to, in particular those of the European Convention on Human Rights (ETS No. 5) (hereafter "the Convention"). This obligation concerns all state organs, whether executive, judicial or legislative.

2. National parliaments are often overlooked in this context. Their potential needs to be further explored. They are key to the effective implementation of international human rights norms at national level and fulfil their duty to protect human rights through legislating (including the vetting of draft legislation), involvement in the ratification of international human rights treaties, holding the executive to account, liaising with national human rights institutions and fostering the creation of a pervasive human rights culture.

3. The members of the Assembly, having a double mandate – as members of the Assembly and of their respective national parliaments – are under a particular duty to contribute to such action.

4. The Assembly notes that the United Nations “Paris Principles” of 1993 have become the internationally accepted benchmark for core minimum standards for the role and functioning of independent national human rights institutions; similar benchmarks should be drawn up for parliamentary bodies.

5. With respect to the implementation of judgments of the European Court of Human Rights (hereafter "the Court"), the Assembly:

5.1. believes that national parliaments are uniquely placed to hold the governments to account for swift and effective implementation of the Court’s judgments, as well as to swiftly adopt the necessary legislative amendments;

5.2. regrets that the post-Interlaken debate on the future of the Convention system does not sufficiently take into account the potentially important role of parliaments and deplores the silence of the Izmir Declaration in this respect;

5.3. points to the positive examples in several member states, notably the United Kingdom, the Netherlands, Germany, Finland and Romania, which have set up parliamentary structures to monitor the implementation of the Court’s judgments.

6. Furthermore, the Assembly:

6.1. encourages parliamentarians to monitor the determination and enforcement of human rights standards by the domestic judicial and administrative authorities;

6.2. urges parliamentarians to exercise their responsibility to carefully scrutinise the executive in their countries when it comes to the implementation of, in particular, international human rights norms;

6.3. calls on governments to involve national parliaments in the negotiation process of international human rights agreements and in the process of implementation of judgements of the European Court of Human Rights;

6.4. calls on all member states to provide for adequate parliamentary procedures to systematically verify the compatibility of draft legislation with Convention standards and avoid future violations of the Convention, including regular monitoring of all judgments which could potentially affect the respective legal orders;

6.5. urges parliaments to step up their efforts in contributing to the supervision of the Court’s judgments by overseeing steps taken by the competent authorities to execute adverse judgments, including scrutiny of the actual measures taken;

6.6. calls on parliaments to set up and/or to reinforce structures that would permit the mainstreaming and rigorous supervision of their international human rights obligations, on the basis of the principles below.

7. The Assembly therefore invites parliaments to implement the following basic principles for parliamentary supervision of international human rights standards.

Basic principles for parliamentary supervision of international human rights standards

1. Appropriate framework and responsibilities

National parliaments shall establish appropriate parliamentary structures to ensure rigorous and regular monitoring of compliance with and supervision of international human rights obligations, such as dedicated human rights committees or appropriate analogous structures, whose remits shall be clearly defined and enshrined in law.

These remits should include, inter alia:

– the systematic verification of the compatibility of draft legislation with international human rights obligations;

– the requirement for governments to regularly submit reports on relevant judgments of the European Court of Human Rights and their implementation;

– the initiation of legislative proposals and amendments to laws;

– subpoena powers over witnesses and documents concerning their remit;

Such committees shall have the responsibility to ensure that parliaments are properly advised and informed on human rights issues. Human rights training should also be provided for parliamentarians and their staff;

2. Independent advice

Human rights committees or appropriate analogous structures shall have access to independent expertise in human rights law.

Adequate resources shall also be made available to provide specialised secretariat support.

3. Co-operation with other institutions and civil society

Co-operation and regular dialogue shall be maintained, as appropriate, with relevant national (for example, national human rights institutions, parliamentary commissioners), and international bodies (for example, the Parliamentary Assembly, the Council of Europe Commissioner for Human Rights, European and other international human rights monitoring bodies), as well as with representatives of well-established non-governmental organisations which have significant and relevant experience.

New French Judge Elected

Last week, the Parliamentary Assembly of the Council of Europe elected a new judge in the Court in respect of France: Mr André Potocki. Potocki received 110 out of 160 votes cast. He will succeed judge Costa, the current judge elected in respect of France, on 4 November 2011. Potocki has been elected for a term of nine years. Who will succeed Costa as president of the Court is, to my knowledge, not yet known.

Potocki, born in 1950, is currently a judge at the French Court of Cassation (in the commercial section!). He was also, shortly, a judge at the Court of First Instance of the European Communities. The expertise gained in the latter function may be very useful in the context of the pending accession of the European Union to the ECHR. His particular expertise in human rights is fairly limited. The CV only indicates that he was a member of the French committee re-examining a criminal decision further to a judgment of the European Court of Human Rights. For his full CV, see here.

The three French candidates were selected by a national committee following an open call for applications - a method which an increassing number of ECHR state parties have opted for in the past few years.

The Week in Review - June the 26th, 2011

Another Sunday, another bout of zmiana pogoda; should we make the Jerzmanowice trip and investigate Chochołowy Dwór? Or not risk the threat of rain and instead stay local? Local won today, but a good time was had down on the bulwary by Wawel at this year's Jarmark. Jousting, real ale, medieval dancing and two small boys now equipped with wooden swords. What could be more perfect? Hey! Mind where you point that thing, ty maluch...

Better retreat into the safety of the week gone by then, where we find but two items of interest waiting for us. The first was our semi-surprise(d) look at the over-use of scope. The second, scraped off our Facebook wall and re-fried here in some nearly-new oil is something altogether crazier...

Promoting itself as "The mis-spelled Encyclopaedia", Wikipeetia is either a brilliant jape or some sort of self-recursive mental torture for anal retentives and proofreaders. It's the kind of thing that could keep you up all night, laughing at the deliberately mis-spelled articles as you frantically sharpen your knives and do IP look-ups to try and trace where the site owners live.

At any rate, that's enough from me for today. This coming Wednesday sees the return of our resident media darling, Dot! Happy times, indeed. Until then,

Pozd.

Jim :) 

Sophie Graduates!!!!!

Today, a wonderful celebration was held for Sophie Woods from Room 8 who has now graduated from Reading Discovery!

Sophie, who was joined by her family, friends, and other Reading Discovery children, (Miracle, Jackson and Dante,) leaves the programme on Level Purple 19/20.

Mrs Pat Watson, our Reading Discovery teacher, says Sophie has worked very hard to achieve such a wonderful result.

A big thank you to everyone at home and at school for doing such a great job supporting Sophie's learning.

Well done Sophie, you are a champion!!!

scope

Wow, I’m still in shock that we haven’t done this already. It should be in the Top Three Most Wanted of our Translators’ FBI. But we here at TFBI always get our man, and when scope foolishly stuck its head out on Sunday, well...

Mr. Scope takes me back to my early days as a rookie ’reader. Back then I knew less than I know now, which is sort of like saying you know more about being smacked in the face after you’ve been punched a few times. The idea is firmly there, but the loose brain cells prevent you from fully cementing the idea before the next blow comes. Or something.

Anyway, scope is a bad case of over-use. Despite Polish employing a great deal more specific words to describe slight variations of one thing or concept (as opposed to English which will happily recycle one word to mean five different things), some Polish words suddenly leap out at you with a gun, screaming and ranting about being versatile and having a half-cousin in London or Dublin. It is my suspicion that scope is one such lunatic. Let’s crack the case files on this one:

Prior convictions
1a) The Buyer agrees to supply items within the scope of the agreement. 
2a)  …solely and only in the scope necessary for work performance.
3a) The new drug is recommended for treatment in the scope of motor system disorders.

What the judge said
1b) The Buyer agrees to supply items within the terms of the agreement.
2b)  …solely and only to the extent necessary for work performance.
3b) The new drug is recommended for treatment of motor system disorders.

Throw the book at it!

1) (mass noun) the extent of the area or subject matter that something deals with or to which it is relevant.
2) (n) extent of mental ability, outlook, etc¹
3) (n) range or opportunity (e.g. That’s beyond the scope of our research)¹           
4) (n)  device looked at or through (telescope).
5) instrument for observing or showing (oscilloscope). 

     

The Verdict
As will be evident by now, Evidence 1a, b and c is not incorrect usage. Technically. This, ladies and germs, is a technicality. Because although Mr. Scope appears to be innocent – he is in fact being grossly over used!! Yes, that’s right, with TWO exclaims!

Scope seems to be one of those rare versatile words in Polish, and so when the bullets start flying he gets sprayed across every paragraph in sight. Now in natural English, it’s just not used to the same extent – at all. Good synonyms exist that are also valid in the legal and business contexts which are scope’s usual MO. The fix, then, is to use a synonym – usually range or extent (extent of/extent to which etc) – or, when not in business or other hyper-formal speak, just cut it all down to of (example 3 above).  

        

Now you’re aware of this recidivistic recalcitrant, I want you to get out there and get him! Dismissed.